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General terms and conditions

Article 1. Applicability of these terms and conditions

1.1             These terms and conditions are applicable to and form part of all offers, quotes and agreements (including but not limited to those of purchase and sale, the supply of goods and/or the provision of services) of the private limited liability company Brinkers Food B.V., hereinafter referred to as “Brinkers”.

1.2             The party with which Brinkers contracts is referred to in these general terms and conditions as “Client”. The Client and Brinkers are jointly referred to as “the Parties”.

1.3             The applicability of the Client’s general terms and conditions is herewith explicitly rejected. The terms and conditions or clauses stipulated by the Client shall only apply if and insofar as they are accepted in writing by Brinkers and then only for the agreement for which an exception is made; for the remainder, these terms and conditions of Brinkers shall remain in full force.

1.4             Once the Client has concluded an agreement with Brinkers under these terms and conditions or is – or should reasonably be deemed to be – otherwise aware of these, then – due to that fact – these terms and conditions shall be applicable to every subsequent agreement concluded with Brinkers, even if they are not expressly referred to or declared applicable when concluding the relevant agreement.

1.5             If one or more of the provisions in these general terms and conditions should at any time be wholly or partially null and void, the remaining provisions of these terms and conditions shall remain fully applicable. In that case, Brinkers and the Client shall consult in order to agree new provisions to replace the null or void stipulations, taking the aim and intent of the original provisions into account to the fullest extent possible.

1.6             In the event of any conflict between these terms and conditions and any specially agreed written provisions, the specially agreed written provisions shall, insofar as Brinkers has agreed with them, prevail over these terms and conditions.

1.7             If these general terms and conditions have also been drawn up in a language other than Dutch, the Dutch language version shall take precedence at all times.

Article 2. Quotes and agreement

2.1             The quotes prepared by Brinkers are without obligations unless a term for acceptance is stated in the quote. The term quote also means the estimates and/or offers included in the price list, circulars, order confirmations, letters, etc. from Brinkers. If a quote contains a no-obligation offer and this is accepted by the Client, Brinkers shall have the right to withdraw the offer within two working days after receipt of acceptance.

2.2             An agreement shall be formed by written confirmation of that agreement by a director of Brinkers or a person authorised by Brinkers for that purpose. This also applies to any change or supplement to the agreement. However, the Client validly commits himself by written or verbal order or instruction. In any event, ‘written’ means by fax, by letter or by email. This provision is without prejudice to the possibility for Brinkers to prove the formation of an agreement in another manner.

2.3             Insofar as the Client delivers any performance or makes preparations for this, in the expectation that an agreement shall be formed or on the assumption that an agreement has been formed whilst that is not the case, the Client does so at its own risk.

2.4             All quotes are based on performance under normal conditions and during normal working hours for Brinkers.

2.5             All price lists, catalogues, samples, offers and other information provided with an offer are given as accurately as possible, but they are not binding. Deviations and/or changes of any nature and extent are therefore explicitly reserved by Brinkers. Brinkers cannot be bound to its quote if the Client can reasonably understand that the quote, or part thereof, contains an obvious mistake or clerical error.

Article 3. Delivery and delivery date

3.1             Unless the Parties explicitly agree an alternative delivery method, delivery shall be ex works/warehouse (in accordance with the Incoterms 2010).

3.2             The Client is obliged to take delivery of the purchased goods at the moment that they are made available to it under the agreement or, if agreed, at the moment at which these are delivered to it. If the Client refuses to take delivery of the goods or fails to provide the information or instructions that are necessary for the delivery to be made, the goods shall be stored at the expense and risk of the Client. The Client shall continue to owe the purchase price, plus interest, damage and costs, including but not limited to the costs of storage. Without prejudice to Brinkers’ right to claim compensation for all costs and damage, Brinkers is also entitled to terminate the agreement in full or in part with immediate effect.

3.3             An agreed delivery date is not a deadline, unless agreed explicitly otherwise. In the event of late delivery, the Client must therefore give Brinkers written notice of default and grant Brinkers a reasonable grace period. If the reasonable period lapses without Brinkers having made the delivery, the Client shall have the right to terminate the agreement. Insofar as part of the agreement has already been fulfilled, the Client is only entitled to partial termination, namely for that part that has not yet been fulfilled. If Brinkers exceeds the delivery or completion time, this shall not entitle the Client to any form of compensation.

3.4             If a (deadline) period is agreed between the Parties, it shall not commence until the agreement has been formed, all information required for the performance of the agreement is in the possession of Brinkers and the Client has also met all of its (payment) obligations up to that moment. If the period within which delivery has to be made has already started, the period shall be extended by the amount of time that the Client fails to meet its (payment) obligations.

3.5             Prior to commencing or continuing fulfilment of the agreement, Brinkers has the right to demand sufficient security from the Client for meeting its obligations.

Article 4. Risk transfer

4.1             The risk associated with the purchased goods shall pass to the Client at the moment that the goods are made available or delivered to the Client.

4.2             Even if the Parties agree that Brinkers will provide transport, the risk associated with storage, loading, transport and unloading shall rest with the Client from the moment of delivery, unless agreed otherwise in writing.

 

Article 5. Weight and quality

5.1             Brinkers is entitled to deliver 5% more or less than the agreed quantity. If the goods are sold on the basis of a sample, Brinkers is also permitted to deliver goods that deviate slightly from that sample.

5.2             The quality and quantity that are determined at the moment the goods leave the Brinkers factory or store is the criterion, irrespective of the sales clause that has been agreed. The quality and quantity shall be determined by Brinkers in a manner specified by Brinkers. The Client can check the count and quality or have these checked at its own expense.

5.3             Brinkers accepts no liability for damage or for any loss of quantity caused by counting or sampling by the competent authorities in the port of entry / place of arrival in the country of destination.

 

Article 6. Price and price increase

6.1             All prices specified in quotes, invoices or other documents from Brinkers are (unless stated otherwise) given in euros and are based on delivery ex works. They do not include excluding VAT and import charges, but they do include packing and packaging costs.

6.2             If Brinkers agrees a specific price with the Client, Brinkers is nonetheless entitled to increase the price and charge the price quoted on its price list that is applicable at the time of delivery.

 

Article 7. Retention of title

7.1             The good supplied by Brinkers shall remain the property of Brinkers until the Client has met all of the following obligations under all relevant agreements concluded with Brinkers:

–                 the consideration in respect of the actual goods delivered or to be delivered;

–                 the consideration in respect of the services performed or to be performed by Brinkers under the agreement(s);

–                 payment of any claims by Brinkers due to the failure by the Client to meet its obligations under the agreement(s).

7.2             The goods supplied by Brinkers that are covered by the retention of title by virtue of paragraph 1 of this Article may only be sold on as part of normal business operations on condition that the Client supplies the goods in turn to its client under retention of title. Furthermore, without permission from Brinkers, the Client is not authorised to pledge the goods or have any other right attached to them. If third parties wish to attach or invoke any right to the goods supplied under retention of title, the Client is obliged to notify Brinkers of this as soon as possible.

7.3             The Client must always do all that it may reasonably be expected to do in order to safeguard Brinkers’ ownership rights.

7.4             If the Client fails to meet its obligations stated in paragraph 1 and/or paragraph 2 of this Article or if Brinkers has reason to believe that it will fail to do so, Brinkers has the right to remove or have a third party remove from the Client (or from third parties who are holding the goods on behalf of the Client) the goods that are subject to the retention of title. The Client is obliged to cooperate fully with Brinkers in this on pain of a penalty of €500 per day that it fails to do so, without prejudice to Brinkers’ right to claim compensation.

7.5             At Brinkers’ request, the Client undertakes to:

–                 insure and keep insured the goods supplied under retention of title against fire, explosion and water damage as well as against theft and to allow Brinkers to inspect the insurance policies. In the event of a pay-out under this insurance, Brinker shall be entitled to these payments;

–                 pledge to Brinkers all the claims that Client has against in respect of the goods supplied under retention of title and to provide all assistance in respect of thereof;

–                pledge to Brinkers the claims that the Client acquires against its clients when selling on the goods supplied under retention of title and to provide all assistance in respect thereof;

–                identify/mark the goods supplied under retention of title as being the property of Brinkers;

–                assist otherwise in implementing all reasonable measures that Brinkers seeks to take to protect its title to the goods.

7.6             If Brinkers wishes to exercise its ownership rights specified in this Article, the Client grants Brinkers (and third parties designated by Brinkers) unconditional permission in advance to enter all of those places containing the property belonging to Brinkers and to repossess the same.

 

Article 8. Force Majeure

8.1             Brinkers is not obliged to meet any obligation towards the Client if it is prevented from doing so as a result of a circumstance for which it is not to blame, or for which it is not responsible by virtue of the law, an agreement or generally accepted practice.

8.2             In these general terms and conditions, force majeure means, without limitation, any circumstance beyond the control of Brinkers that impedes temporary or permanent fulfilment of the agreement, as well as (insofar as not already included) war, war risk, riots, natural disasters, industrial action, worker lockout, transport problems, fire and/or other serious disruptions to the business of Brinkers or its suppliers.

8.3             Brinkers also has the right to invoke force majeure if the circumstance that prevents (further) compliance occurs after Brinkers should have complied with its obligation.

8.4             In the event of force majeure, the Client shall not have the right to suspend its (payment) obligations. If the performance by Brinkers is delayed for more than one month as a result of the force majeure, each of the Parties shall be authorised, to the exclusion of any other rights, to terminate the agreement in writing, without Brinkers being liable for any form of compensation for loss suffered by the Client or by third parties.

8.5             If the force majeure occurs when the agreement has been partly performed, the Client shall retain the part of the goods already delivered or take delivery of or accept the element of the work/services already performed and shall pay the price owing therefor.

 

Article 9. Invoicing and payment

9.1             Brinkers has the right to invoice after each partial delivery.

9.2             Payment must be made within 30 days after the date of the invoice in the manner specified by Brinkers and in the currency specified on the invoice, without the Client being entitled to any deduction, discount, suspension or offset, unless specified otherwise in writing by Brinkers. On delivery of the goods or after performance of the services, insofar as these relate to the supplies or services with a net invoice value of maximum €50, payment shall be made in cash.

9.3             The Client must file any complaints about the amount of the invoice with Brinkers within 7 days after the date of the invoice. When this period has lapsed, the Client will be deemed to have accepted the invoice amount.

9.4             All judicial and extrajudicial costs incurred shall be payable by the Client. The extrajudicial collection costs shall in any event amount to 15% of the amount owing by the Client, including the interest, subject to a minimum of € 200.

9.5             If payment under the agreement is to be made in a currency other than euros, the Client shall, in the event of late payment, also be obliged to pay Brinkers the negative difference between the equivalent amount of the purchase price in euros, as the payment would have been on the contractual due date, and the equivalent amount on the actual payment date, all calculated on the basis of the official exchange rate of De Nederlandsche Bank for the relevant currency.

9.6             The full claim for payment shall be immediately exigible without any demand or notice of default being required if:

–                 the Client is declared bankrupt or is granted provisional and/or definitive suspension of payments;

–                 the Client’s goods or accounts receivable are attached;

–                 the Client (as a company) is dissolved, taken over in part or in full, closed down or liquidated;

–                 the Client fails to meet one or more of its obligations towards Brinkers (in full and/or in a timely manner), irrespective of whether these arise from an agreement or the law;

–                 after conclusion of the agreement, Brinkers becomes aware of circumstances that give Brinkers reason to fear that Brinkers will be unable to meet its obligations;

–                Brinkers has asked the Client on conclusion of the agreement to provide creditworthiness information or to provide security for compliance and this information or security has not been provided or is inadequate.

Article 10. Obligation to inspect and complaints

10.1.          The Client is obliged to inspect (or have a third party inspect) the goods supplied immediately upon delivery and to check that the quality and/or quantity of the goods delivered corresponds with that which has been agreed and that they meet the requirements that the parties have agreed in respect of the goods. Short deliveries and external damage to supplies must be stated clearly on the (carriage) document that is to be signed on receipt of the goods. The statement must contain a detailed description of the defect so that Brinkers is able to respond properly.

10.2           The Client must file any complaints with Brinkers in writing and with a clear description within two working days after receipt of the goods; failure to do so shall result in the Client forfeiting its rights. If the Client files a complaint, it must leave the goods in an untouched state and keep them available for a period to be stipulated by Brinkers until Brinkers has been able to investigate the complaints. If a report is made later than this or if Brinkers – despite its request – is not given the opportunity to investigate the complaint, the Client shall forfeit the right to repair, replacement or compensation.

10.3           The Client’s payment obligation shall not be suspended as a result of the Client filing a complaint (in a timely manner). Moreover, the Client shall, in that case, remain obliged to accept and pay for the other goods ordered.

10.4           In the event of a claim for a quality defect that is filed in a timely manner and which is found to be fair, Brinkers shall make a replacement batch available to the Client. If the quality deviation is only of a minor nature or only relates to a small part of the batch, there shall be no replacement, but the Client shall be able to claim compensation from Brinkers for reduced value.

10.5           Under no condition shall Brinkers be obliged to deliver a performance or pay compensation other than that which is described in the foregoing paragraphs.

10.6           Returns shall only be permitted if Brinkers has given its explicit prior permission therefor. Unless agreed otherwise, returns and investigation shall be at the Client’s expense and risk. If the complaint is upheld by Brinkers, Brinkers shall refund the costs of the return shipment to the Client.

10.7           If it is established that a complaint is unfounded, the resulting costs, including the costs of investigation that Brinkers has had to incur, shall be fully at the expense of the Client.

Article 11. Duty of confidentiality

11.1           The Client shall not in any way disclose to third parties the existence of this agreement, nor any details of which it becomes aware in relation to the conclusion or the performance of this agreement and in respect of which it is aware of or can reasonably assume that it is of a confidential nature. The previous sentence does not apply to disclosure that is necessary for the performance of this agreement or if the Client is obliged to disclose under any statutory regulation.

11.2           The confidential information may only be used within the framework of the agreement and may only be copied or reproduced insofar as is necessary for the performance of the agreement.

11.3           In the event of a breach of the provisions of paragraph 1 and/or paragraph 2, the Client shall owe a penalty of € 150,000, without a demand or notice of default being required and without prejudice to Brinkers’ right to claim full damages plus interest and costs. The penalty that is paid or owed shall be deducted from any damages, interest and costs owing.

Article 12. (Further) obligations on the part of the Client

12.1           The Client is obliged to ensure an up-to-date database of end clients for the goods supplied to the Client by Brinkers. That database must, in any event, contain the following information: name, address and domicile of the clients, a description of the goods supplied to those clients and the date on which the goods were supplied to the end clients.

12.2           At Brinker’s request, the Client shall make the database referred to in paragraph 1 of this Article available to Brinkers.

12.3           In the event of a product recall, the Client shall cooperate fully to follow any instructions from Brinkers.

12.4           If the Client fails to meet its obligations under this Article and Brinkers suffers damage as a result of that, Brinkers shall be entitled to compensation from the Client for this damage.

 

Article 13. Intellectual property rights

13.1           The intellectual property rights vested in Brinkers shall remain the property of Brinkers at all times. The Client shall not be permitted to change the supplied goods in full or in part or to give them another (trade) name and/or packaging, or otherwise remove or change any indications relating to copyright, brands, trade names or other intellectual or industrial property rights belonging to Brinkers, unless agreed otherwise in writing. Nor shall the Client be permitted to use any name, trade name, trademark or logo belonging to or any other reference to Brinkers, in any external press release, advertising material, publicity material or otherwise, without the permission of Brinkers.

13.2           In the event of a breach of the provisions of paragraph 1, the Client shall owe a penalty of € 150,000, without a demand or notice of default being required and without prejudice to Brinkers’ right to claim full damages plus interest and costs. The penalty that is paid or owed shall be deducted from any damages, interest and costs owing.

 

Article 14. Liability

14.1           Brinkers shall not be liable for any form of direct or indirect, material or non-material damage whatsoever that the Client or a third party suffers in relation to or as a result of an agreement entered into with Brinkers, a fault, failure or omission on the part of Brinkers, any goods supplied, repaired or processed by Brinkers or any service provided by Brinkers or due to any other cause, unless:

–                 Brinkers has nonlife insurance therefor and that insurance pays out, in which case the entire liability is always limited to the amount that is paid out under the insurance in the relevant case;

–                 the Client or the relevant third party demonstrates that the damage is attributable to an intentional act or gross negligence on the part of Brinkers.

14.2           Insofar as it should be established at law that the limitation of liability described in paragraph 1 of this Article cannot be upheld, the damages to be paid by Brinkers – including penalties – shall never exceed the amount (excluding VAT) that the Client has paid to or owes Brinkers for the order or assignment from which the claim for damages arises. However, Brinkers shall never be liable for indirect damage, including but not limited to loss of profit, reduction in product value, business stoppage and/or lost savings.

14.3           At Brinker’s request, the Client shall indemnify Brinkers fully against all claims by third parties against Brinkers in relation to any fact for which liability is excluded in these terms and conditions.

14.4           The Client’s right to claim damages shall not prejudice its obligations to pay in accordance with the agreement.

Article 15. Settlement of disputes, governing law

15.1           Contrary to the statutory rules for the competence of the civil court, any dispute between Brinkers and the Client shall, in the event that the Court has jurisdiction, be settled by the Court in the Netherlands in the administrative district of Overijssel. However, Brinkers shall be entitled to summon the Client to appear before the court that has jurisdiction under the law or the applicable international treaty.

15.2           Any agreement between Brinkers and the Client is governed by Dutch law, even if an obligation is fulfilled completely or partially abroad or if the Client is domiciled abroad. The applicability of the Vienna Sales Convention (UN Convention on the International Sales of Goods; CISG) is excluded.

 

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