Terms of service
General Terms and Conditions of Delivery for the Food and Beverage Industry, adopted by the Stichting Centraal Orgaan voor de Voedings- en Genotmiddelenbranche (COVEG).
Filed with the Chamber of Commerce in Amsterdam under number 41199446.
1. Definitions
1.1 In these general terms and conditions, the following terms are used in the following meaning, unless explicitly indicated otherwise:
- Supplier: the user of these general terms and conditions.
- Counterparty: the natural person or legal entity that receives offers from the Supplier or concludes agreements with the Supplier.
- Agreement: the agreement between the Supplier and the Counterparty.
2. Applicability / Conversion
2.1 These General Terms and Conditions apply to all legal relationships between companies affiliated with COVEG as well as companies that have been granted permission by COVEG to use these Terms and Conditions (hereinafter referred to as: “the Supplier”) and its Counterparty. Acceptance of an offer or placing an order implies that the Counterparty accepts the applicability of these General Terms and Conditions.
2.2 Deviations from these General Terms and Conditions can only be agreed in writing.
2.3 The applicability of any general and/or special conditions of the Counterparty is excluded, unless the Supplier has accepted the applicability of such conditions in writing.
2.4 These General Terms and Conditions also apply to all agreements with the Supplier for which the Supplier engages third parties for their execution.
2.5 Provisions deviating from these General Terms and Conditions, whose applicability has been agreed between the Supplier and the Counterparty for a separate agreement, do not apply to other offers, orders, quotations and agreements between the Supplier and the Counterparty.
2.6 If these General Terms and Conditions are wholly or partly invalid or non-binding, or if reliance cannot be placed on any provision, the parties shall remain bound to the remaining part. The parties shall replace the invalid or non-binding part with provisions that are valid and binding and whose legal effects, considering the content and purpose of these General Terms and Conditions, correspond as closely as possible to those of the invalid or non-binding part.
2.7 The Supplier reserves the right to amend or supplement these conditions from time to time. The version filed most recently at the time of the conclusion of the Agreement shall always apply.
3. Offers / Formation of the Agreement
3.1 Every offer made by the Supplier is without obligation and must be regarded as one whole, unless explicitly agreed otherwise in writing.
3.2 If the Counterparty places an order, the Agreement is only concluded when the Supplier has accepted it in writing, or has sent an order confirmation electronically, or has commenced performance of the order.
3.3 Samples or models shown or provided, whether in catalogues or electronically, are for indication only, without the delivered goods having to correspond exactly thereto. The Supplier is not obliged to supply again products that were delivered previously, if these products have been removed from the Supplier’s production or sales programme.
3.4 The Supplier cannot be held to its offers if the Counterparty, in terms of reasonableness and fairness and according to generally accepted views in society, ought to have understood that the offer or a part thereof contained an obvious mistake or clerical error.
4. Prices
4.1 All prices are ex-warehouse and exclusive of value added tax (VAT).
4.2 If the factors on which the Supplier’s prices are based change, the Supplier is entitled, after making an offer or after the Agreement has been concluded, to increase the offered prices. If the Supplier increases the offered prices within three months after conclusion of the Agreement, the Counterparty is entitled to dissolve the Agreement in whole or in part, without the Supplier being liable for any compensation.
5. Delivery
5.1 Delivery takes place at the address of the Counterparty, unless explicitly agreed otherwise.
5.2 The Counterparty is obliged to take delivery of the purchased goods at the time of delivery or at the time they are made available to him. The Counterparty must also ensure sufficient loading and unloading facilities and a waiting time for delivery that is as short as possible. If the Counterparty refuses to take delivery or fails to provide information or instructions necessary for delivery, the Counterparty will be liable for all additional costs.
5.3 At the moment of delivery, the risk of the delivered goods passes to the Counterparty.
6. Delivery time
6.1 A delivery time stated by the Supplier is based on the circumstances that apply at the time the Agreement is concluded and, insofar as dependent on the performance of third parties, on the data provided to the Supplier by those third parties. The Supplier will observe the delivery time as much as possible.
6.2 The agreed delivery time is an indication and shall never be regarded as a strict (fatal) term, unless explicitly agreed otherwise. In the event of late delivery the Counterparty must place the Supplier in default in writing and grant him a reasonable period in which to still fulfil his obligations.
6.3 If the Supplier requires data from the Counterparty for the execution of the Agreement, the delivery time shall commence only after the Counterparty has provided these data to the Supplier.
6.4 Exceeding the delivery time does not entitle the Counterparty to any compensation.
7. Partial deliveries
The Supplier is entitled to perform in parts. If goods are delivered in parts, the Supplier is entitled to invoice each part separately, unless a partial delivery has no independent value.
8. Transport / Risk
8.1 Shipment and transport are at the expense of the Supplier.
8.2 As soon as the sold goods have been delivered by the Supplier or by a carrier designated by the Supplier to the Counterparty, the goods are, from the moment of delivery, at the risk of the Counterparty, even if ownership has not yet passed to the Counterparty.
9. Packaging
9.1 Packaging intended for repeated use remains the property of the Supplier. The Counterparty is obliged to return the packaging intended for reuse to the Supplier. Return takes place at the expense of the Counterparty.
9.2 The Supplier is entitled to set a period within which packaging intended for reuse must be returned.
9.3 The Supplier is obliged to take back the packaging returned by the Counterparty within the period referred to in paragraph 2 at the price previously charged by the Supplier to the Counterparty for this packaging, unless the Counterparty has been notified of a price change at least three months before the date on which another price will apply.
9.4 The Supplier’s obligation to take back and refund the charged price only applies if the packaging intended for reuse is in good condition, is clean and contains no waste.
10. Retention of title
10.1 Goods delivered by the Supplier to the Counterparty remain the property of the Supplier until the amounts owed by the Counterparty have been paid in full. Ownership of the delivered goods passes to the Counterparty, notwithstanding actual delivery, only after the Counterparty has fully paid all that he owes the Supplier under any Agreement. This also includes compensation of interest and costs, including those relating to earlier orders.
10.2 If, pursuant to paragraph 1, the Supplier reclaims as its property the goods subject to retention of title and retrieves these goods or delivers them “longa manu” to a third party, the Supplier’s claim against the Counterparty in respect of these goods shall be reduced by the market value of the goods thus taken back at the time of recovery. The market value is equal to the purchase price realised or that could be realised through private or public sale to third parties.
10.3 Subject to the provisions of article 10.4, the Counterparty may not encumber, resell, alienate, lease, lend, pledge or otherwise burden the delivered goods before ownership has passed to him. Until ownership has actually been transferred, the delivered goods may—subject to other provisions and obligations—only be used in accordance with the intended use determined at the time of conclusion of the Agreement or reasonably to be expected.
10.4 The Counterparty is only entitled to sell or deliver to third parties the goods delivered by the Supplier of which the Supplier is the owner, insofar as this is necessary in the context of the Counterparty’s normal business operations. In the event of resale, the Counterparty is obliged to stipulate a retention of title from its customers.
10.5 The Counterparty is obliged, at the first request of the Supplier or persons (legal or natural) designated by the Supplier, to make the delivered goods available and hereby irrevocably authorises the Supplier to enter the place where the goods are located in order to take back the goods subject to retention of title.
10.6 In the event of attachment, (provisional) suspension of payments or bankruptcy of the Counterparty, the Counterparty must immediately draw the attention of the attaching bailiff, the administrator or the curator to the Supplier’s (ownership) rights.
11. Payment
11.1 Invoices from the Supplier must be paid no later than on the invoice due date, in the manner indicated by the Supplier. The date of payment is the value date on which the Supplier receives the payment.
11.2 Payment must be made in the agreed currency without discount or set-off.
11.3 If the Counterparty does not pay within the agreed period, he will be in default from the due date of the invoice, without a prior notice of default being required.
11.4 From the due date, the Counterparty owes interest of 1.5% per month on the outstanding amount.
11.5 Objections to the amount of the invoices do not suspend the payment obligation.
11.6 Payments made by the Counterparty shall first be applied to reduce costs, then to reduce accrued interest and finally to reduce the principal and current interest.
11.7 In the event of late payment, the Counterparty owes the extrajudicial collection costs, which amount to 15% of the principal sum, with a minimum of €250. Extrajudicial costs are in any case owed when the Supplier has engaged a third party for collection.
11.8 In the event of late payment, liquidation, bankruptcy or suspension of payments of the Counterparty, all payment obligations of the Counterparty become immediately due and payable, regardless of whether the Supplier has already invoiced or pre-financed, and the Supplier is entitled to suspend further performance of the Agreement or to dissolve the Agreement, without prejudice to the Supplier’s right to claim damages from the Counterparty.
12. Set-off and security
12.1 The Supplier is always entitled to set off any amount it has to claim from the Counterparty, whether or not due and payable or subject to conditions, against a claim of the Counterparty on the Supplier, whether or not due and payable.
12.2 If the Supplier’s claim on the Counterparty is not yet due and payable, the Supplier will not exercise its right of set-off unless the Counterparty’s claim is attached or otherwise subject to recourse, a limited right in rem is established on it, or the Counterparty transfers its claim under a special title. Where possible, the Supplier will inform the Counterparty in advance of the exercise of its right of set-off.
12.3 The Counterparty is obliged, at the first request of the Supplier, to immediately provide sufficient security, in a form desired by the Supplier, for the fulfilment of all its obligations and to supplement this security if necessary. As long as the Counterparty has not complied with this request, the Supplier is entitled to suspend its obligations.
12.4 If the Counterparty has not complied with a request as referred to in the previous paragraph within 14 days after a reminder to that effect, all obligations of the Counterparty become immediately due and payable.
13. Liability
13.1 Liability for damage caused by the Supplier’s attributable failure to fulfil its obligations is limited to the invoice amount charged by the Supplier.
13.2 The Supplier is never liable for any indirect damage, such as loss due to business interruption, loss of profit, delay damages, consequential damages or any other business damage, on whatever grounds or of whatever nature.
13.3 Furthermore, the Supplier is not liable for damage resulting from information or advice given by the Supplier, the content of which does not explicitly form part of a written Agreement.
13.4 Without prejudice to the foregoing, the Supplier is not liable if the damage is due to intent and/or gross negligence and/or culpable acts, or to improper or improper use by the Counterparty.
13.5 The Counterparty indemnifies the Supplier against all claims from third parties for compensation of damage (also) caused by or related to the goods delivered by the Supplier.
13.6 The Counterparty is obliged to report any damage-causing event to the Supplier in writing within 14 days after the event or, if this is not reasonably possible, as soon as is reasonably possible. Failing such notice, any right to compensation lapses.
13.7 Any claim to payment of an agreed penalty or to compensation for damage expires one year after the event by which the penalty became due or the damage was caused, unless legal proceedings have been initiated within this period.
13.8 The provisions of this article are without prejudice to the Supplier’s statutory liability under mandatory provisions. In that case, the Supplier’s liability is limited to an amount of €500,000 (five hundred thousand euros) per event or series of related events.
14. Defects; complaint periods; returns
14.1 The Counterparty must verify whether the delivered goods conform to the Agreement. To that end the Counterparty must, upon delivery, examine the delivered goods, among other things, on the following points:
-
whether the correct goods have been delivered;
-
whether the quantity and number of the delivered goods correspond to what has been agreed between the parties;
-
whether the delivered goods meet the requirements that may be imposed for normal use and/or trading purposes.
14.2 If visible defects or shortages are found, the Counterparty must note these on the delivery note, consignment note or any other transport document. In addition, the Counterparty must also report these defects and/or shortages to the Supplier by e-mail or in writing within three days after delivery.
14.3 Non-visible defects must be reported by the Counterparty to the Supplier in writing, stating reasons and the invoice data, within 30 days after delivery, or after the defects could reasonably have been discovered.
14.4 Complaints regarding invoices must be reported by the Counterparty to the Supplier in writing within 8 days of the invoice date.
14.5 If the Counterparty does not report defects or complaints within the stated periods, its complaint will not be dealt with and its rights will lapse. The Counterparty’s right to compensation or replacement of delivered goods lapses if the goods have been processed, treated or not properly stored, or if the shelf life of the relevant goods has expired at the time a complaint is submitted.
14.6 Goods delivered by the Supplier to which complaints relate must remain available for inspection by the Supplier in the condition they were in at the time the defects were discovered.
14.7 Returns are sent only after the Supplier’s permission. Returns sent without the Supplier’s consent will be held at the Counterparty’s expense and risk and kept at its disposal.
15. Intellectual property / copyrights
15.1 The goods delivered by the Supplier do not infringe any intellectual property right or copyright. If it is nevertheless established, whether or not in court, that any goods delivered by the Supplier infringe the intellectual property rights or copyrights of a third party, the Supplier shall, at its discretion and after consultation with the Counterparty, replace the item concerned by an item that does not infringe such rights, or acquire a right of use in respect of it, or take back the item concerned against repayment of the purchase price less normal depreciation.
15.2 The Counterparty is not entitled to replacement of an item that conflicts with any intellectual property right or copyright of a third party if it has not informed the Supplier in writing of this fact within 30 days after becoming aware of it.
15.3 In the case of delivery of software, the Counterparty obtains only the rights of use and never becomes the owner of the software. The copyrights to the software are vested in the manufacturer.
16. Suspension and termination of the Agreement
16.1 If the Counterparty does not, does not properly, or does not timely fulfil any obligation arising from any Agreement or from these conditions, the Counterparty shall be in default without notice of default and the Supplier shall be entitled to:
-
suspend performance of that Agreement and directly related Agreements until payment is sufficiently secured; and/or
-
dissolve the Agreement(s) and directly related Agreements in whole or in part, without the Supplier being liable for any compensation, and without prejudice to the Supplier’s other rights.
16.2 In the event of (provisional) suspension of payments or bankruptcy of the Counterparty, or if the Counterparty is placed under guardianship, all Agreements with the Supplier are dissolved by operation of law, unless the Supplier notifies the Counterparty within a reasonable period that it requires performance of (part of) the relevant Agreement(s). In that case, the Supplier is entitled, without notice of default, to suspend performance of the relevant Agreement(s) until payment is sufficiently secured, without prejudice to the Supplier’s other rights.
16.3 Furthermore, the Supplier is entitled to suspend performance of its obligations or to dissolve the Agreement if, after conclusion of the Agreement, circumstances that have come to the Supplier’s knowledge give good reason to fear that the Counterparty will not fulfil its obligations.
17. Force majeure
17.1 If the Supplier is unable to fulfil its obligations to the Counterparty due to a non-attributable failure (force majeure), the Supplier is entitled, at its discretion and without judicial intervention, to suspend performance of the Agreement or to dissolve the Agreement without judicial intervention, without being liable for any compensation.
17.2 Force majeure on the part of the Supplier means any circumstance independent of the will of the Supplier by which the fulfilment of its obligations towards the Counterparty is wholly or partly prevented, or as a result of which fulfilment of its obligations cannot reasonably be required of the Supplier, regardless of whether such circumstance was foreseeable at the time of conclusion of the Agreement. Such circumstances include, among others: strike, lock-out, fire, machine breakdown, stagnation or non-performance by suppliers of the Supplier, transport difficulties in own or third-party transport, and/or measures of any government authority, as well as the absence of any permit to be obtained from the authorities, work interruptions, loss of components to be processed, import or trade bans.
17.3 Insofar as the Supplier has, at the time the force majeure occurs, already partially fulfilled its obligations under the Agreement or will be able to fulfil them, and the part fulfilled or to be fulfilled has independent value, the Supplier is entitled to invoice the part already fulfilled or to be fulfilled separately. The Counterparty is obliged to pay this invoice as if it were a separate Agreement.
18. Product recalls
The Counterparty is obliged to cooperate with product recall actions if, in the opinion of the Supplier, it is necessary to recall goods delivered by the Supplier from the consumer.
19. Disclaimer
19.1 The Counterparty grants the Supplier permission to store the data provided by the Counterparty in a database.
19.2 The Supplier’s website and all texts, documents, images and sounds contained therein, in the broadest sense, are protected by copyright. Further distribution, publication or transfer thereof requires the Supplier’s written consent. The Supplier excludes liability for any damage (direct, indirect or consequential damage) arising from the use of its website and its content.
20. Limitation
All legal claims of the Counterparty against the Supplier expire one year after the Counterparty has lodged a complaint in relation thereto.
21. Applicable law / competent court
21.1 All legal relationships between the Supplier and the Counterparty are governed by Dutch law.
21.2 Disputes between the Supplier and the Counterparty shall be submitted exclusively to the competent court in the district where the Supplier has its registered office, unless the Supplier, as the suing or petitioning party, opts for the competent court in the domicile or place of business of the Counterparty.