Terms and conditions — Dani Food Ingredients B.V.

Terms and Conditions for the Supply of Products and Services by Dani Food Ingredients B.V.

Terms and Conditions for the Supply of Products and Services by Dani Food Ingredients B.V.

1.General provisions

1.1 Definitions:

The following definitions and rules of interpretation apply in this agreement.

“Buyer” means the person who or organisation which requests and/or accepts a quotation from the Seller with the intention of purchasing Product(s) from the Seller, or whose order for Product(s) is accepted by the Seller.

“Contract” means the contract for the purchase and sale of the Products for a fixed quantity, at a fixed price and over a fixed period of time. Contract deliveries comprise of call-offs, with a minimum of 1 call-off per contract. Deliveries will be made ONLY against a Contract call-off.

“Data Protection Legislation” all legislation and regulatory requirements in force from time to time relating to the use of personal data and the privacy of electronic communications, including, without limitation (i) any data protection legislation from time to time in force in the Netherlands including the General Data Protection Regulation ((EU) 2016/679) and any other directly applicable European Union regulation relating to data protection and privacy (

“Force Majeure Event” has the meaning given to it in Clause 19.

“Intellectual Property Rights” patents, utility models, rights to inventions, copyright and [neighbouring and] related rights, moral rights, trademarks and service marks business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

"Purchase Order” also referred to as ‘Orders’ or ‘Call-offs’ are single orders placed either against Quotations or Call-offs made against Contracts. Each Order will have a unique Order no. to identify it.

“Products” means the goods and/or services (including any instalment(s) of the Products) which the Seller is to supply in accordance with these Conditions and any Products supplied in substitution for or in replacement of or in addition to such Products.

“Quotation” also referred to as ‘quote’ is the price offered by the Seller to the Buyer for the purpose of selling Products. A quotation may only be submitted in writing and will usually be accompanied by ‘Conditions’ of offer and sale. If the Conditions of the offer and sale do not accompany an offer, it is implied that standard DANI B.V. ‘Conditions’ of offer apply.

“Seller” means DANI FOOD INGREDIENTS B.V. ., also referred to as DANI B.V. ‘Seller’ (registered in the Netherlands under number 77627962) or any authorised representative acting on behalf of Dani B.V, who offers a quotation to the Buyer with the intention of selling Products to the Buyer; or accepts an order from the Buyer; or who supplies or has supplied Products to the Buyer.

1.2 Interpretation:

(a) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

(b) A reference to a party includes its personal representatives, successors and permitted assigns.

(c) A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.

(d) Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

(e) A reference to writing or written includes fax and email.

2. Basis of the sale

2.1 The Seller shall sell and the Buyer shall purchase the Products in accordance with any written Quotation of the Seller which is accepted by the Buyer, or any written Order of the Buyer which is accepted by the Seller, subject in either case to these Conditions which shall govern the Contract to the exclusion of any other terms and conditions subject to which any such Quotation is accepted or purported to be accepted, or any such Order is made or purported to be made, by the Buyer.

2.2 The Seller is at all times entitled to make changes to these general terms and conditions and will notify the Buyer of any change that has been made. No variation to these Conditions shall be binding unless agreed in Writing – within 7 days after the date of notification – between the authorised representatives of the Buyer and the Seller. If the Buyer has not informed the Seller within 7 days after the date of notification that it does not accept the intended changes, the Buyer will be deemed to have accepted these changes, after which the changes will become a full and integral part of the agreement.

2.3 If the Buyer has notified the Seller in writing within the period referred to in the previous paragraph that it does not accept the intended changes, than the Seller will be entitled to dissolve the Contract with immediate effect, without the Buyer being entitled to any form of compensation.

2.4 Any advice or recommendation given by the Seller or its employees or agents to the Buyer or its employees or agents as to the storage, application or use of the Products which is not confirmed in Writing by the Seller is followed or acted upon entirely at the Buyer’s own risk, and accordingly the Seller shall not be liable for any such advice or recommendation which is not so confirmed.

2.5 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller

2.6 The Order shall only be deemed to be accepted when the Seller issues written acceptance of the Order at which point and on which date the Contract shall come into existence (Commencement Date).

2.7 Any samples, drawings, descriptive matter or advertising issued by the Seller and any descriptions of the Goods or illustrations or descriptions of the Services contained in the Seller’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Services and/or Goods described in them. They shall not form part of the Contract or have any contractual force.

2.8 These Conditions apply to the Contract to the exclusion of any other terms and conditions that the Buyer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

2.9 Any quotation given by the Seller is without obligation and shall not constitute an offer, and is only valid for a period of 5 Business Days from its date of issue, unless otherwise stated in writing.

2.10 All of these Conditions shall apply to the supply of both Goods and Services except where application to one or the other is specified.

3. Orders, specifications and quality

3.1 No order submitted by the Buyer shall be deemed to be accepted by the Seller unless and until confirmed by the Seller’s authorised representative in writing.

3.2 The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the Buyer and for giving the Seller in writing, any necessary information relating to the Products within enough time to enable the Seller to perform the Contract in accordance with its terms.

3.3 The quantity, quality and description of and any specification for the Products shall be those set out in the Seller’s quotation (if accepted by the Buyer) or the Buyer’s order (if accepted by the Seller).

3.4 The Seller reserves the right to make any changes in the specification of the Products which are required to conform with any applicable safety or other statutory requirements or, where the Products are to be supplied to the Seller’s specification, which do not materially affect their quality or performance.

3.5 No order which has been accepted by the Seller may be cancelled by the Buyer except with the agreement in Writing of the Seller and the Buyer shall indemnify the Seller in full against all loss (including loss of profit) costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Seller as a result of any cancellation. However, from the date of commencement of the order or signing of the contract, whichever is earlier, a 14 day cooling off period will be allowed during which cancellations or reducing the order will be accepted by the Seller without penalty. Any administrative costs related to this order and subsequent cancellation will duly be passed on to the Buyer. Unless otherwise stated, this will be € 70,00 plus any labour costs accrued in preparing the order and any transportation costs in relation to delivery. Without prejudice to the generality of the foregoing, should the Buyer purport without the agreement in Writing of the Seller to cancel any order which has been accepted by the Seller or refuse to accept delivery of any of the Products such action shall constitute a breach of the agreement and, at the option of the Seller, the Seller shall be entitled to require the Buyer to pay to the Seller by way of liquidated damages an amount equivalent to 50% of the invoice value of the order so purported to be cancelled or 50% of the invoice value of the Products delivery of which is so refused (as the case may be). In the event of the Seller so requiring the Buyer shall pay such amount to the Seller (without any deduction) within 7 days of receiving from the Seller written notification of the amount required to be paid. The Seller and the Buyer hereby agree that such amount represents a genuine pre-estimate of the monetary value of the loss and damage likely to be suffered by the Seller as a result of such breach of agreement on the part of the Buyer. For the avoidance of doubt, in the event that the Seller opts to require the Buyer to pay liquidated damages as set out above, and the Buyer duly pays such liquidated damages, neither party shall have any further liability to the other in relation to the Products in respect of which such liquidated damages are paid.

3.6 The Seller warrants that on delivery, the Products shall:

(a) conform in all material respects with their description;

(b) be free from material defects;

(c) be fit for any purpose held out by the Seller.

3.7 The Seller shall not be liable for the Products failure to comply with the warranty in Clause 3.6 if:

(a) the Buyer makes any further use of such Products after giving a written notice in accordance with Clause 3.6.

(b) the defect arises because the Buyer failed to follow the Seller’s oral or written instructions as to the storage, use or maintenance of the Products or (if there are none) good trade practice. These are mentioned in the Seller’s product specification and it is the responsibility of the Buyer to request these prior to purchase;

(c) the defect arises as a result of the Seller following any delivery or packaging instructions supplied by the Buyer;

(d) the Buyer alters such Products without the written consent of the Seller; and

(e) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions.

3.8 The Seller shall not be responsible for testing any products for allergens, unless specifically requested by the Buyer and agreed in writing.

4. Price of the Products

4.1 The price of the Products shall be the Seller’s quoted price. Unless otherwise agreed upon in writing all prices are in euro’s and exclusive of VAT.

4.2 Where the Products are supplied for export from the United Kingdom, the Seller’s published export price list relating to the country of destination shall apply, wherever applicable.

4.3 All prices quoted are valid for a maximum of 5 Business Days only or such period as shall be stated by the Seller on the face of the relevant quotation or until earlier acceptance by the Buyer, after which time they may be altered by the without giving notice to the Buyer.

4.4 The Seller reserves the right by giving notice to the Buyer at any time before delivery to increase the price of the Products to reflect any increase in the cost to the Seller which is due to any factor beyond the control of the Seller (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials or other costs of manufacture) or to any change in delivery dates, quantities or specifications for the Products which is requested by the Buyer, or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate information or instructions in writing.

4.5 Except as otherwise stated under the terms of any quotation, and unless otherwise agreed in Writing between the Buyer and the Seller, all prices are given by the Seller are exclusive of carriage charges.

5. Terms of payment

5.1 Subject to any special terms agreed in Writing between the Buyer and the Seller the Seller shall be entitled to invoice the Buyer for the price of the Products at any time before or after delivery of the Products.

5.2 All Invoices are payable net by bank transfer or on a pro-forma basis, unless credit facilities have been approved. The Invoices are payable net within 14 days following the date of the invoice, unless otherwise agreed in writing, into a bank account set up by the Seller in the currency in which the invoice is made, all without any right to discount, suspension or settlement. The Buyer shall pay all invoices without any other deductions notwithstanding that delivery may not have taken place and the property in the Products has not been passed to the Buyer. The time of payment of the price shall be of the essence of the Contract. Receipts for payment will be issued only upon request.

5.3 If the Buyer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Seller, the Buyer will be in default without further notice of default being required. In that case, all payments due by the Buyer will be payable immediately. The Seller shall be entitled to:

5.3.1 suspend any further deliveries to the Buyer;

5.3.2 charge the Buyer an immediately interest of 4% per month for late payment over the invoiced amounts (including VAT) calculated from the due date of the invoice concerned until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest);

5.3.3 charge the Buyer all costs relating to the collection of the amounts due and not paid (in time) by the Buyer, including all judicial and extrajudicial costs as well as costs for legal assistance. Failing timely payment, the Seller is entitled to charge extrajudicial collection costs of at least fifteen percent (15%) of the total amount due within a minimum of Euro 500 ex VAT, without prejudice to the right of the Seller to claim compensation for the actual damage if this damage should be higher.

5.3.4 Payment is first deducted from the collection costs due, then from the interest due and then from the principal sum. If the Buyer leaves several invoices unpaid, a payment – using the determination in the previous sentence – will first be deducted from the oldest invoice and then the second oldest invoice, etc.

5.4 If there is a dispute between the Buyer and the Seller about the quality or for any other reason reclamation(s) submitted by the Buyer, this does not give the Buyer the right to suspend payment in whole or in part.

5.5 in the event of default on the part of the Buyer as well as in the following cases, the Seller is entitled to dissolve the Contract without any judicial intervention, whereby the Sellers rights accruing as stated in the previous paragraphs of this clause will remain unaffected and everything all amounts the Buyer is due in pursuant to the Contract will be immediately due and payable to the Seller. Being in the event that:

5.5.1 a payment term has been exceeded;

5.5.2 bankruptcy or suspension of payment of the Buyer has been applied for;

5.5.3 attachment is levied on the Buyers goods or claims;

5.5.4 the Buyer (legal entity) is dissolved or liquidated; or

5.5.5 the Buyer (natural person) is placed under guardianship or is deceased.

In the event that the Seller shall cancel the contract under the provisions of Clause 5.5 above the Buyer shall indemnify the Seller in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Seller as a result of such cancellation. Without prejudice to the generality of the foregoing, at the option of the Seller, the Seller shall be entitled to require the Buyer to pay to the Seller by way of liquidated damages an amount equivalent to 50% of the invoice value of the contract so cancelled. In the event of the Seller so requiring, the Buyer shall pay such amount to the Seller (without any deduction) within seven days of receiving from the Seller written notification of the amount required to be paid. The Seller and the Buyer hereby agree that such amount represents a genuine pre-estimate of the monetary value of the loss and damage likely to be suffered by the Seller as a result of such cancellation.

5.6 With regard to anything the Buyer owes the Seller, the Buyer is not entitled to set this off against any claim which the Buyer allegedly has against the Buyer. Nor will the Buyer be entitled to invoke any right of retention in respect of anything held by the Buyer and to be delivered to the Seller.

6. Packaging Variables

6.1 The Seller offers standard packaging of Euro or Standard Pallets and Products may be packaged in paper bags, boxes, hessian sacks or bales. Should the Buyer have specific packaging requirements the Seller reserves the right to charge additional fees.

6.2 With regard to the use of the EAN symbol, we are never liable, unless the Seller has not followed the instructions of the EAN.

7. Delivery

7.1 Delivery of the Products shall be made by the Buyer collecting the Products at the Seller’s premises at any time after the Seller has notified the Buyer that the Products are ready for collection or, if some other place for delivery is agreed by the Seller, by the Seller delivering the Products to that place.

7.2 The risk of damage to or loss of the Products in terms of storage, loading, transport and unloading among others, shall pass to the Buyer:

7.2.1 in the case of Products to be delivered at the Seller’s premises, at the time when the Seller notifies the Buyer that the Products are available for collection; or

7.2.2 in the case of Products to be delivered otherwise than at the Seller’s premises, at the time of delivery or, if the Buyer wrongfully fails to take delivery of the Products, the time when the Seller has tendered delivery of the Products;

7.3 The Buyer and the Seller may agree that the Seller will be responsible for transport. In that case too, the Buyer bears the risk of, inter alia, storage, loading, transport and unloading. The Buyer can insure itself against these risks.

7.4 Any dates quoted for delivery of the Products are approximate only and may not be seen as a strict deadline. The Seller shall not be liable for any delay in delivery of the Products howsoever caused. Time for delivery shall not be of the essence unless previously agreed by the Seller in writing. The mere exceeding of the agreed delivery period will not constitute default on the Sellers part.

7.5 The Products may be delivered by the Seller in advance of the quoted delivery date upon giving reasonable notice to the Buyer. The Seller shall be entitled to make part delivery of the Products at any time.

7.6 Where the Products are delivered in instalments, each delivery shall constitute a separate contract and failure by the Seller to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to treat the Contract as a whole as repudiated.

7.7 If the Buyer fails to take delivery of the Products or fails to give in writing, adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Buyer’s reasonable control or by reason of the Seller’s fault) then, without prejudice to any other right or remedy available to the Seller, the Seller may:

7.7.1 store the Products until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage; or

7.7.2 sell the Products at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Buyer for the excess over the price under the Contract or charge the Buyer for any shortfall below the price under the Contract.

8. Property

8.1 Notwithstanding delivery and the passing of risk in the Products, or any other provision of these Conditions, the property in the Products shall not pass to the Buyer until the Seller has received in cash or cleared funds payment in full of the price of the Products and payment in full of all sums due from the Buyer to the Seller whether under the Contract or by virtue of any other liability of the Buyer to the Seller.

8.2 Until such time as the property in the Products passes to the Buyer, the Buyer shall hold the Products as the Seller’s fiduciary agent and bailee and shall keep the Products separate from those of the Buyer and third parties and properly stored protected and insured and identified as the Seller’s property. Until that time the Buyer shall be entitled to resell or use the Products in the ordinary course of its business, but shall account to the Seller for such part of the proceeds of sale or otherwise of the Products, whether tangible or intangible, including insurance proceeds, as is equivalent to the invoice value of the Products and shall keep all such proceeds separate from any moneys or property of the Buyer and third parties and, in the case of tangible proceeds, properly stored, protected and insured

8.3 Until such time as the property in the Products passes to the Buyer (and provided the Products are still in existence and have not been resold) the Seller shall be entitled at any time to require the Buyer to deliver up the Products to the Seller and, if the Buyer fails to do so forthwith, to enter upon any premises of the Buyer or any third party where the Products are stored and repossess the Products.

8.4 The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Products which remain the property of the Seller but if the Buyer does so all moneys owing by the Buyer to the Seller shall (without prejudice to any other right or remedy of the Seller) become due and payable.

8.5 For the avoidance of doubt, nothing contained in this Clause 8 shall entitle the Buyer to return any of the Products to the Seller save as expressly provided in these terms and conditions or as expressly agreed in writing between the Seller and the Buyer.

9. Product defect

9.1 If the Buyer discovers a product defect:

9.1.1 it is the responsibility of the Buyer to give notice to the Seller in writing of any such defects within 48 hours of discovery in accordance with Clause 3.6.

9.1.2 the Seller shall have 48 hours within which to acknowledge this notice.

9.1.3 following this, the Seller will investigate the quality issue and present their findings in writing to the Buyer within a reasonable time frame.

9.1.4 should a claim be accepted by the Seller in accordance with Clause 3.6, a Rejection Note will then be sent to the Buyer to be filled out in its entirety, stamped, signed and returned to the Seller within 48 hours of receipt of said Rejection Note.

9.1.5 the Seller shall not be liable to accept any Rejection Notes from the Buyer for product failure to comply with the warranty in Clause 3.6 if:

the Buyer fails to send the complete stamped and signed Rejection Note within the stipulated time frame of 48 hours.
the Buyer makes further use of the Product after having given notice to the Seller of said failure.
the defect in question arises out of any of the provisions of Clause 3.7(b)-(d).

9.2 Insofar the delivery was accompanied by instructions for use or use-by period, the Buyer will, as the occasion arises, have proof that the Product in question was handled in accordance with these instructions or that the indicated use-by date was not exceeded in connection with the use.

9.3 Use in production: If the goods or any part thereof supplied under the contract are processed, altered, or tampered with in any way, including repackaged by the Buyer or receiver of the goods or any other person, the quality of the goods shall be deemed to be acceptable to the buyer. All customers' quality control checks are to be completed on the entire load before use in production.

9.4 The Seller operates on a strict ‘exchange only policy’ subject to an upper limit determined by the Buyer at the time of investigating said quality complaint. Goods deemed to be of unacceptable quality will be replaced by an acceptable quality of product, wherever possible. No refunds or returns will be offered way of compensation unless agreed by The Seller in writing.

10. Duty of care, Intellectual property rights, Confidentiality

10.1 The Buyer shall always handle the delivered goods with the required care and shall not perform any actions that could affect the quality and/or safety of the goods, in addition to the packaging thereof, or the reputation of the Sellers brands.

10.2 The copyright as well as other intellectual property rights on written advice, recipes as well as fragrances, mouthfeel, etc. rests with the Seller. Third parties, including Buyers, are not authorised to reproduce and/or disclose the objects of intellectual property rights to third parties without our prior written consent.

10.3 The Buyer guarantees that it shall observe secrecy towards third parties in respect of all data, working methods and other matters qualified by the Seller as confidential and any data, working methods and other matters whose confidentiality has not been explicitly stated, but which the Buyer should reasonably understand to be confidential and of which its personnel or third parties engaged by it take cognizance when concluding and/or executing any Contract with the Seller.

10.4 In the event of violation of the provision of Clause 10.3, the Buyer will owe the Seller an immediately payable fine of Euro 100.000 per violation, immediately payable and not subject to mitigation and/or set-off, without judicial intervention. This fine may be claimed in addition to full compensation under the law and does not affect the Sellers rights in this respect.

10.5 The Buyer is in any case obliged to observe confidentiality as referred to in paragraph 3 with regard to the Products and Services referred to in paragraph 2 of this Clause.

11. Retained samples:

11.1 For the purpose of verification of product quality, the Seller will retain lot samples of Products sold for the period of the shelf life of the product. Should a dispute concerning quality arise, further sample testing will be undertaken by the Seller and it reserves the right to instruct a laboratory of its choosing. The Buyer will be bound by results of the sample testing.

11.2 In the event that the results of the Buyer and the Seller are contradictory, a 3rd party lab shall be appointed to carry out a final test. The costs of this test shall be borne equally between both parties.

12.Sample testing:

The Buyer is required to carry out its own sample testing within 30 days of delivery of the product and should any issues arse the Buyer must communicate all results within 2 working days of the results being received in order to allow the Seller to consider a refund or replacement.

13. Warranties and liability

13.1 Subject to the conditions set out below the Seller warrants that the Products will correspond with their specification subject to such tolerances as are reasonable and as are normally accepted in the trade and will be free from defects in material and workmanship at the time of delivery.

13.2 The above warranty is given by the Seller subject to the following conditions:

13.2.1 the Seller shall be under no liability in respect of any defect in the Products arising from any drawing, design or specification supplied by the Buyer:

13.2.2 the Seller shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow the Seller’s instructions (whether oral or in writing), misuse or alternation or repair of the Products without the Seller’s approval.

13.2.3 the Seller shall be under no liability under the above warranty (or any other warranty, condition or guarantee) if the total price for the Products has not been paid by the due date for payment.

13.2.4 the above warranty does not extend to Products not manufactured by the Seller, in respect of which the Buyer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to the Seller.

13.3 Any claim by the Buyer which is based on any defect in the quality or condition of the Products or their failure to correspond with specification or lot sample provided shall (whether or not delivery is refused by the Buyer) be notified to the Seller within 30 days from the date of delivery or (where the defect or failure was not apparent on reasonable inspection). If delivery is not refused, and the Buyer does not notify the Seller accordingly, the Buyer shall not be entitled to reject the Products and the Seller shall have no liability for such defect or failure, and the Buyer shall be bound to pay the price as if the Products had been delivered In accordance with the Contract.

13.4 Any claim by the Buyer which is based on short delivery or non-delivery shall be notified to the Seller in Writing (in the case of short delivery) within 7 days of delivery and (in the case of non-delivery) within 30 days of receipt by the Buyer of the Seller’s Invoice for the Products which the Buyer claims have not been delivered. If the Buyer does not notify the Seller accordingly the Buyer shall not be entitled to reject any Products that have been delivered and the Seller shall have no liability for such short delivery or non-delivery.

13.5 Where any valid claim in respect of any of the Products which is based on any defect in the quality or condition of the Products or their failure to meet specification is notified in writing to the Seller in accordance with these Conditions, in particular Clause 3.6 and Clause 9.2; the Seller shall be entitled to replace the Products or (refund to the Buyer the price of the Products if agreed in writing and if there is no replacement available) (or a proportionate part of the price), but the Seller shall have no further liability to the Buyer.

13.6 Except in respect of death or personal injury caused by the Seller’s intent or gross negligence, the Seller shall not be liable to the Buyer by reason of any representation, or any implied warranty, condition or other term or under the express terms of the Contract for any consequential loss or damage (whether for loss of profit or otherwise) costs, expenses or other claims for consequential compensation whatsoever (and whether caused by the intent or gross negligence of the Seller, its employees or agents or otherwise) which arise out of or in connection with the supply of the Products or their use or resale by the Buyer, except as expressly provided in these Conditions.

13.7 The Buyer indemnifies the Seller against all claims from third parties on account of unlawful conduct by third parties involved in the execution of the agreement in any way.

14. Buyer’s Obligations

14.1 The Buyer shall:

(a) ensure that the terms of the Order are complete and accurate, which includes but not limited to:

timely payment as per the terms agreed.
reasonable checking of goods within 30 days of receipt and giving notice to the Seller within this time period.
taking possession of the goods.
approving specifications, samples and analyses within 5 business days of receipt.
honour all contracts with the Seller.
any other responsibilities which help the Seller in the fulfilment of their obligations.

(b) co-operate with the Seller in all matters relating to the Products supplied;

(c) provide the Seller with such information as the Seller may reasonably require in order to supply the Products, and ensure that such information is complete and accurate in all material respects;

(d) comply with all applicable laws, including health and safety laws;

14.2 If the Seller’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Buyer or failure by the Buyer to perform any relevant obligation (Buyer Default):

(a) without limiting or affecting any other right or remedy available to it, the Seller shall have the right to suspend performance of the Services until the Buyer remedies the Buyer Default, and to rely on the Buyer Default to relieve it from the performance of any of its obligations in each case to the extent the Buyer Default prevents or delays the Seller’s performance of any of its obligations;

(b) the Seller shall not be liable for any costs or losses sustained or incurred by the Buyer arising directly or indirectly from the Seller’s failure or delay to perform any of its obligations as set out in Clause 13; and

(c) the Buyer shall reimburse the Seller on written demand for any costs or losses sustained or incurred, including but not limited to storage fees, by the Seller arising directly or indirectly from the Buyer Default.

15. Limitation of Liability

15.1 The Seller has obtained Public Liability insurance cover in respect of its own legal liability for individual claims not exceeding € 500.000,00 per claim. The limits and exclusions in this clause reflect the insurance cover the Seller has been able to arrange and the Buyer is responsible for making its own arrangements for the insurance of any excess loss.

15.2 The Seller is never obliged to pay any compensation or whatsoever to the Buyer, unless there is intent or gross negligence from the Seller. The Seller is never liable for (any) consequential or consequential loss, injury to persons, delay damage, direct or indirect damage, by whatever name – loss of profit – suffered by the Buyer.

15.3 The Buyer indemnifies the Seller against all claims from third parties on account of unlawful conduct by third parties involved in the execution of the Contract in any way.

15.4 If, for whatever reason, the Seller cannot rely on the provisions of Clause 16.2, the liability on whatever legal basis will in all cases be limited to the amount paid out by the insurer under the Sellers liability insurance in the relevant case.

15.5 If, for whatever reason, the Seller cannot invoke the aforementioned limitation, the obligation to compensate damage is limited to a maximum of 15% of the total sum of the Contract, excluding VAT. If the Contract consists of partial deliveries, this will be limited to a maximum of 15% (ex VAT) of the assignment amount for that part/partial delivery.

15.6 Any liability expires after one year from the date of damage.

15.7 Unless the Buyer notifies the Seller that it intends to make a claim in respect of an event within the notice period, the Seller shall have no liability for that event. The notice period for an event shall start on the day on which the Buyer became, or ought reasonably to have become, aware of and shall expire 2 months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.

15.8 This Clause 15 shall survive termination of the Contract.

16. Termination

16.1 Without prejudice to the Sellers rights, the Seller may unilaterally terminate the Contract, the obligations arising therefrom and all other existing agreements between the parties without judicial intervention, in whole or in part, and to take back the delivered goods, without any compensation being due to the Buyer for the reasons listed in the provision of Clause 5.5.

In the event of termination of the agreement as referred to in the provision of Clause 16.1, any claim the Seller may have against the Buyer for whatever reason will become immediately due and payable in full.

17. Consequences of Termination

17.1 On termination of the Contract:

(a) the Buyer shall immediately pay to the Seller all of the Seller’s outstanding unpaid invoices and interest and, in respect of Services and Goods supplied but for which no invoice has been submitted, the Seller shall submit an invoice, which shall be payable by the Buyer immediately on receipt;

(b) the Buyer shall return all of the Seller Materials and any Deliverables or Goods which have not been fully paid for. If the Buyer fails to do so, then the Seller may enter the Buyer’s premises and take possession of them. Until they have been returned, the Buyer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract.

17.2 Termination or expiry of the Contract shall not affect any rights, remedies, obligations and liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.

17.3 Any provision of the Contract that expressly or by implication is intended to have effect after termination [or expiry] shall continue in full force and effect.

18. Force Majeure

18.1 Neither party shall be in breach of the Contract nor liable for delay in performing or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.

18.2 The Seller shall not be liable to the Buyer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of the Seller’s obligations in relation to the Products if the delay or failure was due to any cause beyond the Seller’s reasonable control. Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond the Seller’s reasonable control:

18.2.1 Act of God, explosion, flood, tempest, fire or accident;

18.2.2 war or threat of war, sabotage, insurrection, civil disturbance, or requisition;

18.2.3 acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;

18.2.4 import or export regulations or embargoes;

18.2.5 strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the Seller or of a third party);

18.2.6 difficulties in obtaining raw materials labour, fuel, parts or machinery;

18.2.7 power failure or breakdown in machinery.

18.2.8 epidemics, pandemics (e.g. Covid-19), lock downs or any governmental measure deriving from this.

19. General

19.1 Assignment and other dealings

(a) The Seller may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.

(b) The Buyer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of the Seller.

19.2 Notices.

(a) Any notice or other communication given to a party under or in connection with this agreement shall be in writing and shall be:

(i) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or

(ii) sent by fax to its main fax number or sent by email to the address of the respective account manager.

(b) Any notice or communication shall be deemed to have been received:

(i) if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; and

(ii) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting [or at the time recorded by the delivery service; and

(iii) if sent by fax or email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this Clause 19.2(b)(iii), business hours means 8:30am to 5.00pm Monday to Thursday and 8:30am to 3:30pm Friday on a day that is not a public holiday in the place of receipt.

(c) This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

(d) A notice given under this agreement is not valid if sent by email.

19.3 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.

19.4 Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.

19.5 No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other, or authorise either party to make or enter into any commitments for or on behalf of the other party.

19.6 Entire agreement.

(a) The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

(b) Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misrepresentation based on any statement in the Contract.

(c) Nothing in this clause shall limit or exclude any liability for fraud.

19.7 Third parties rights.

(a) Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts to enforce any term of the Contract.

(b) The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.

19.8 Variation. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is agreed in writing and signed by the parties (or their authorised representatives).

19.9 Governing law. The Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with Dutch law. The provisions of the Vienna Sales Convention (C.I.S.G.) expressly do not apply to these Conditions.

19.10 Jurisdiction. Each party irrevocably agrees that the court of Rotterdam shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.

19.11 Insofar as one of the provision of these Terms and Conditions now or at a later time would be in conflict with a Clause from the Contract, the Clause from the Contract shall prevail over the relevant provision of these terms and conditions.

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