General Terms and Conditions of Sale B2C

Contents

• Article 1 – Definitions
• Article 2 – Corporate Identity/Entrepreneur
• Article 3 – Relevance
• Article 4 – Offer
• Article 5 – Agreement
• Article 6 – Right of Withdrawal
• Article 7 – Withdrawal Costs
• Article 8 – Exclusion Right of Withdrawal
• Article 9 – Pricing
• Article 10 – Conformity and Guarantees
• Article 11 – Delivery and Execution
• Article 12 – Payments
• Article 13 – Complaints
• Article 14 – Disputes
• Article 15 – Additional and Different Provisions
• Article 16 – Import Duties

In these Conditions/Terms the following definitions are applicable:

• Consideration time: the term during which the consumer can execute the right of withdrawal.
• Consumer: the natural person not dealing on behalf of a company or profession and who comes to a distance agreement with the entrepreneur.
• Day: calendar day.
• A length transaction: a distance agreement related to a series of products and services of which the delivery obligation and the purchasing are spread over a period of time.
• Durable Medium: any instrument which enables the recipient or the entrepreneur to store information addressed personally to them in a way accessible to future reference for a period of time adequate to the purpose of the information and which allows the unchanged reproduction of the information stored.
• Right of Withdrawal: the possibility for the consumer to terminate the distance agreement within the consideration term.
• Entrepreneur: the natural person or corporation who offers distance products to consumers.
• Distance Agreement: an agreement based on a corporate organized system of distance sales of products and services including the closing of an agreement using one or more techniques of distant communication.
• Technique of distant Communication: a means that can be used to close an agreement without the consumer and the entrepreneur having gathered together in the same place and at the same time.

Article 2 – Corporate Identity/Entrepreneur

Daelmans Banket B.V.
Kerkstraat 48
5253 AP, Nieuwkuijk
Nederland

E-mailadres: [email protected]
KvK-nummer: 16056184
Btw-identificatienummer: NL001175233B02

Article 3 – Relevance

These general conditions/terms apply to any offer of the entrepreneur and to every finalized distance agreement between entrepreneur and consumer.

Before the distance agreement is concluded, the text of the general conditions/terms is being made available to the consumer. If this is reasonably not possible that before the distance agreement is concluded, it will be indicated that the general conditions/terms can be seen at the entrepreneur and on request of the consumer these general conditions/terms shall be sent to the consumer as soon as possible without extra costs.

If the distance agreement is concluded electronically, notwithstanding the previous article and before the distance agreement is concluded, the text of the general conditions/terms can be made available electronically to the consumer in such a way that the text can be saved in a simple way on a durable medium. If this is reasonably not possible that before the distance agreement is concluded it will be indicated where the consumer can find the general conditions/terms electronically and that these conditions/terms at the consumer’s request will be sent electronically or otherwise to the consumer without extra cost.

For the case that besides these general conditions/terms, specific product and service conditions are also applicable, the second and third article are mutatis and in case of conflicting conditions/terms the consumer can appeal on the relevant conditions/terms which are the most favorable for the consumer.

Article 4 – Offer

If an offer has a limited validity or has other specifications, this will be emphatically mentioned.

The offer contains a complete and accurate description of the offered products and services. The description is sufficiently detailed to enable a proper consumer’s assessment of the products/services. The images used by the entrepreneur are true representations of the products and services. Obvious mistakes and errors do not bind the entrepreneur.

Each offer contains such information that it is clear for the consumer which rights and obligations are related to the offer when it is accepted by the consumer. This concerns in particular:

• price inclusive taxes
• possible costs of delivery
• the manner in which the agreement has been concluded and the necessary signatures
• whether to apply the right of withdrawal
• the method of payment, delivery and performance of the contract
• the deadline for accepting the offer or the period within which the entrepreneur guarantees the price
• the level of the rate for distance communication if the costs for the usage of the technology for distance communication are calculated on another ground than the regular fare for communication
• if the agreement after the conclusion is archived and if so how to consult it for the consumer
• the manner in which the consumer, before concluding the agreement, can check and if necessary also restore the information provided by him under the agreement
• any other languages, including Dutch, for the agreement
• the codes of conduct to which the entrepreneur is subject and the manner in which the consumer can consult electronically the codes of conduct
• the minimum duration of the distance agreement in the event of a length transaction

The agreement is finalized, subject to the provisions in paragraph 4, at the moment the consumer accepts the offer and meets the conditions.

If the consumer has accepted electronically the offer, the entrepreneur immediately confirms electronically that he has received the acceptance of the offer. As long as the entrepreneur has not confirmed the acceptance, the consumer can terminate the agreement.

If the agreement is concluded electronically, the entrepreneur will take appropriate technical and organizational measures to protect the electronic data transfer and that he will ensure a safe web environment. If the consumer can pay electronically, the entrepreneur will observe the necessary security measures.

The entrepreneur can notify or check, within the legal framework, if the consumer can meet the payment obligations, and also check all important facts and factors which are needed to finalize a sound distance agreement. If the entrepreneur based on research, has good reasons not to conclude the agreement then he is entitled to motivate and to refuse an order/ request or he can connect special conditions to the execution of the offer.

The entrepreneur shall send the following information with the products or services, written or in such a manner that the consumer can store in an accessible way the data on a durable medium:

• The address of the company for the consumer to file complaints
• The conditions and the way how the consumer can execute the right of withdrawal and a clear indication related to the exclusion of the right of withdrawal
• Information about after sales guarantees and services
• Article 4 paragraph 3 unless the entrepreneur has already sent this information before the execution of the agreement
• The requirements for termination of the agreement if the agreement has a duration of one year or more or if it has an indefinite duration

In case of a length transaction the previous clause e. is only applicable for the first delivery.

Article 6 – Right of Withdrawal

Deliverance of products:

After purchasing products the consumer has the possibility to disband the agreement without giving reasons during 14 days. The cooling off period starts on the day after the consumer receives the product or a pre-designated representative by the consumer made known to the entrepreneur.

During the cooling off period the consumer shall treat the product and the package carefully. He shall unpack or use the product only to that extent to as far as it is necessary to judge if he wishes to keep the product. If he does want to execute the right of withdrawal, he shall return the product with all accessories and - if reasonably possible - in the original conditioning and packaging to the entrepreneur, in accordance with the provided reasonable and clear instructions of the entrepreneur.

Deliverance of Services:

After the deliverance of services the consumer has the possibility to disband the agreement without giving reasons during at least 14 days, commencing on the day of the entering into the agreement.

In order to execute the right of withdrawal, the consumer must abide by the reasonable and clear instructions provided by the entrepreneur at the offer or finally at the deliverance of the service.

Article 7 – Withdrawal Costs

If the consumer executes the right of withdrawal, he will have to pay no more than the costs of returning the product.

If the consumer has made a payment, the entrepreneur shall pay back this amount as soon as possible but no later than within 14 days after the repeal or after the return shipment.

Article 8 – Exclusion Right of Withdrawal

The entrepreneur can exclude the right of withdrawal of the consumer for as far as foreseen in paragraph 2 and 3. The exclusion of the right of withdrawal applies only if the entrepreneur has clearly mentioned this at least in time before the conclusion of the agreement.

Exclusion of the right of withdrawal is only possible for the following products:

• Which are established by the entrepreneur according to specifications of the consumer
• That they are clearly personal in nature
• Which cannot be returned because of their nature
• That can spoil or age quickly
• Whose price is bound to fluctuation on the financial market which the entrepreneur has no influence
• Individual newspapers and magazines
• For audio and video recordings and computer software of which the consumer has broken the seal

Exclusion of the right of withdrawal is only possible for the following services:

• Concerning lodging, transport, restaurants or to spend leisure on a certain date or during a certain period
• Whose delivery has begun with the express consent of the consumer before the consideration period has expired
• Concerning betting and lotteries

Article 9 – Pricing

During the validity period mentioned in the offer, the prices of the offered products and services shall not be raised save for price changes due to changing VAT rates.

Notwithstanding the previous paragraph the entrepreneur can offer products and services with variable prices when these prices are subject to fluctuations on the financial market and where the entrepreneur has no influence. This bondage to fluctuations and the fact that the mentioned prices are target prices will be mentioned with the offer.

Price increases within 3 months after the conclusion of the agreement are only permitted only if they are the result of legal regulations or provisions.

Price increases from 3 months after the conclusion of the agreement only if the entrepreneur has stipulated this and:

• These are the result of legal regulations or provisions; or
• The consumer has the competence to terminate the agreement from the day the price increase takes effect.

The in the offer mentioned prices include VAT.

Article 10 – Conformity and Guarantees

The entrepreneur ensures that the products and services measure up to the agreement, ensures that expiration date(s) of the products last at least 2 months from purchase date, ensures the in the offer mentioned specifications, ensures reasonable requirements, soundness and/or usefulness and ensures on the date of the establishment the existing legal provisions and/or government regulations. If agreed the entrepreneur also ensures that the product is suitable for other than normal use.

A guarantee provided by the entrepreneur, manufacturer or importer does nothing to alter the rights and claims which the consumer under the agreement can put forward against the entrepreneur.

Personalized products may show slight color variations in designs compared to both the digital proof and previous production runs. These variations are an unavoidable part of the production process and do not constitute grounds for a complaint.

Article 11 – Delivery and Execution

The entrepreneur shall observe in utmost care the reception and execution of orders of products and when assessing applications for services.

The address that has been made known by the consumer to the entrepreneur is considered to be the delivery place.

Taking into account what is stated in article 4 of the general conditions/terms, the entrepreneur shall execute the accepted orders expeditiously but not later than within 30 days unless a longer period has been agreed. If the delivery is delayed or if a delivery cannot or partially be executed, the consumer is notified about this no later than 30 days after he placed the order. In that case the consumer has the right to terminate the agreement without any further cost and he is entitled to compensation.

In the event of termination in accordance with the previous paragraph the entrepreneur shall pay back the amount that the consumer has paid as soon as possible but no later than 30 days after the termination.

If the delivery of an ordered product appears to be impossible, the entrepreneur shall strive to make available a replacement product. At least before the delivery it will be mentioned in a clear and understandable manner that a replacement product will be delivered. The right of withdrawal cannot be ruled out with regard to replacement products. The costs of a possible return shipment come at the expense of the entrepreneur.

The risk of damage and/or loss of products rest with the entrepreneur until the moment of delivery at the consumer or a pre-designated and an announced representative to the entrepreneur, unless otherwise expressly agreed. If you receive a damaged product, you should report this by email within three days. You can send this email to: [email protected].

Article 12 – Payments

Unless otherwise agreed, the amounts due have to be met by the consumer within 7 days after entering the cooling off period referred to article 6, paragraph 1. In case of an agreement to provide a service the cooling off period starts after the consumer has received the confirmation of the agreement.

When selling products to consumers, a prepayment of more than 50% must never be stipulated in the general terms and conditions. When a prepayment has been stipulated the consumer cannot assert any rights regarding the execution of the relevant order or service(s) before the stipulated payment has been made.

The consumer has the duty to notify the entrepreneur about inaccuracies in the payment details.

In case of default by the consumer the entrepreneur has, subject to legal restrictions, the right to charge the reasonable costs which are made known to the consumer in advance.

Article 13 – Complaints

The entrepreneur features a sufficiently publicized complaints procedure and handles the complaint according to this complaints procedure.

Complaints about the execution of the agreement must be described fully and clearly within reasonable time submitted to the entrepreneur after the consumer has observed the defects.

The complaints submitted to the entrepreneur will be answered within a period of 14 days from the day of receipt. If a complaint has a foreseeable longer processing time, the entrepreneur will answer within 14 days an acknowledgement and an indication when the consumer will receive a more detailed answer.

If a complaint cannot be resolved by mutual agreement then there is a dispute that is subject to the dispute settlement.

Article 14 – Disputes

Dutch law exclusively applies to agreements between entrepreneur and consumer whereupon these general conditions/terms are related to.

In case of disputes the consumer can approach Stichting WebwinkelKeur (WebwinkelKeur Foundation) and this foundation will mediate for free. If both parties cannot come up to a solution then the consumer has the possibility to let his complaint be handled by Stichting GeschilOnline (GeschilOnline.nl Foundation). The ruling of this foundation is binding and both the consumer and the entrepreneur accept this binding ruling.

Article 15 – Additional and Different Provisions

Additional or different provisions compared to the General conditions/terms may not be to the prejudice of the consumer and should be recorded in writing in such a manner that the consumer can save these in an accessible way on a durable medium.

Article 16 – Import duties

Orders going to countries outside Europe may be subject to import taxes, customs duties, and additional charges requested by the destination country. The recipient of the international order may face such issues. The charges are calculated once the order reaches the destination country. Any additional charges to get the order through customs are the responsibility of the customer. We have no control over these charges and therefore cannot predict how high they will be. Import procedures vary from country to country. For more information, contact local customs. Please note that the customs process can cause delays. These delays are not included in the estimated transport duration.

GENERAL TERMS AND CONDITIONS OF SALE B2B

These general terms and conditions are used by Daelmans Banket B.V., established in (5253 AP) Nieuwkuijk at Kerkstraat 48, registered with the Dutch Chamber of Commerce under number 16056184. These general terms and conditions have been filed with the Dutch Chamber of Commerce under number 16056184 and can also be downloaded from the website www.stroopwafels.com.

1. Definitions

1.1 In these general terms and conditions of sale, the following terms have the following meaning:

• Customer: the buyer of Products, who is not a consumer or end user;
• Agreement: all agreements between the Customer and the Seller, including all amendments and supplements to them that relate to the purchase and sale of Products;
• Parties: the Customer and the Seller;
• Private Label: the sale of Products to the Customer under a brand name, product name or other name of the Customer;
• Products: all products of the Seller;
• Seller: Daelmans Banket B.V. and any legal successor thereof;
• Terms and Conditions: these general terms and conditions of sale.

All definitions have the same meaning in the singular and plural, unless expressly specified otherwise.

2. Applicability

2.1 These Terms and Conditions apply to all quotations and offers of the Seller, as well as to all Agreements and legal consequences arising from the above, unless the Parties expressly agree otherwise.

2.2 The applicability of purchasing terms or other terms and conditions of the Customer is expressly excluded.

2.3 If any provision of these Terms and Conditions is invalid or is declared void then the other provisions of these Terms and Conditions will remain in force in full, with the Seller and the Customer then consulting with each other in order to agree a new provision that replaces the invalid or void one respectively, whereby the purpose and effect of the invalid or void provision respectively will be complied with as much as possible.

2.4 The Seller is at all times entitled to amend these Terms and Conditions. The most recent version of the Terms and Conditions is always the one that is applicable. Such an amendment comes into force fourteen (14) days after the date on which the amended Terms and Conditions were sent to the Customer. If the Customer makes a written objection to this amendment within this fourteen (14)-day period then the original Terms and Conditions will continue to apply to him.

3. Offers and orders

3.1 All offers and quotations by the Seller are made entirely without obligation and are non-binding, unless expressly specified otherwise.

3.2 All offers and quotations remain valid for thirty (30) days, unless expressly specified otherwise.

3.3 The Customer warrants the correctness and completeness of the information on which the Seller bases his offer or quotation.

3.4 The Seller cannot reasonably be held to obvious mistakes and/or clerical errors in offers, quotations and Agreements. If the price offered by the Seller is incorrect and deviates by more than 10% from the intended price then the Seller can terminate the Agreement, whereupon the Seller will refund to the Customer the sum already paid by the latter. In the event of termination of the Agreement on the above grounds, the Seller is in no way liable for losses resulting from the termination.

3.5 Unless stated otherwise by the Seller, the Customer can place his order:

• by e-mail
• in writing
• by electronic means (EDI), or
• in another way as specified by the Seller

The Customer can obtain specific contact information and other details relating to orders from the Seller.

3.6 An Agreement is not formed until the Seller has accepted an order in writing or by e-mail.

3.7 The Seller is at all times entitled to refuse an order in whole or part without further explanation and without being liable in any way for any losses, for example if the Seller has an indication or a suspicion that the Customer will not fulfil his payment obligations and/or that the Products are not available.

4. Execution

4.1 The Seller will endeavor to the best of his ability to execute the Agreement with due care, and where applicable in accordance with the arrangements and procedures agreed with the Customer and set down in writing. All activities by the Seller will be carried out on the basis of a ‘best efforts’ obligation, unless and in so far as the Seller expressly commits to a result in the written Agreement and the result in question has also been described with sufficient precision.

4.2 The Seller retains the right at all times to deploy third parties for the activities, if a proper execution of the activities requires this. The applicability of Article 7:404 of the Dutch Civil Code is hereby expressly excluded.

4.3 The Seller will select any third parties carefully and will only deploy them if this is necessary. The Seller is not liable for any losses caused by the third party.

4.4 The Customer will at all times refrain from conduct or acts that actually harm or could potentially harm the reputation of the Seller and/or of the Products in any way.

5. Relationship between the Parties

5.1 The Customer is not considered to be a business agent or other agent or distributor of the Seller unless he is referred to explicitly as such on the basis of a written agency agreement and/or distribution agreement.

5.2 An agency and/or distribution agreement is considered to be non-exclusive unless it is expressly stipulated in the Agreement that the relationship is to be considered to be exclusive in whole or part.

5.3 In all cases, the discount or commission that the Customer receives as distributor or agent includes the fee for introducing a new relationship or for increasing the Seller’s goodwill. The Seller will not owe any fee (including for goodwill or customers) or compensation when the agency agreement and/or distribution agreement ends, apart from in so far as such a fee is prescribed by applicable mandatory law.

6. Prices/Payments

6.1 Payments must be made – without suspension, discount or setoff for whatever reason – no later than the agreed upon payment term; failure to do so means the Customer is in default by operation of law and accordingly without further notice of default being required. If the Customer fails in the fulfilment of his payment obligation then he is immediately in default, as well as for the outstanding amount of interest owed at a rate of 1.25% per month, without any warning or notice of default being required for this. The Customer then owes the Seller the costs, both at law and extrajudicially, in respect of the collection of all that which the Customer owes the Seller. The extrajudicial payment collection costs total 15% of the sum owed, with a minimum of EUR 250.00 (two hundred and fifty euros).

6.2 Irrespective of any payment arrangements made previously, the Seller is at all times entitled to demand full or partial payment or replacement collateral for the delivery of Products at a time and in a way that is at the sole discretion of the Seller, as well as to suspend all his obligations under the Agreement until he has received payment or replacement collateral, without being liable for any losses.

6.3 Seller is entitled, at her discretion, to deliver only on condition of advance payment or against securities pledged by Customer and/or under deviating provisions, including the conditions of documentary credit as customary in commercial exchanges, such as irrevocable letters of credit, cash against documents, or cash against delivery, in the absence of which Seller will not proceed to deliver. The delivery time will, in case of such advance payment, come into effect at the moment that payment is received by Seller. At any time it deems to be necessary at her discretion, Seller is also entitled to demand Customer to pledge adequate additional security for payment. In the absence of pledging of such security, Seller is entitled to suspend implementation of the Agreement or to rescind it, without judicial intervention, by way of written notice, and to claim compensation of damages.

6.4 All prices for the Products are quoted in euros unless stated otherwise. Unless agreed otherwise, all prices are exclusive of VAT and other taxes and/or levies and are also exclusive of transportation costs, packaging costs, insurance costs and export and import levies. These costs and levies are for the Customer’s account.

6.5 The Seller retains the right at all times to adjust the prices of the Products due to increased raw material prices and labour costs and other cost increasing factors such as but not limited to taxes, levies or import duties, even after an Agreement has already be entered into and even if it has been agreed that the price will be fixed. The Seller will inform the Customer of this without delay.

6.6 The Seller is entitled to deduct payments first from the extrajudicial and other costs, then from the interest owed and then from the principal.

6.7 Any objections to invoices, specifications, descriptions and prices must be made to the Seller in writing no later than ten (10) days after receipt. If this is not possible due to any cause that is not to be attributed to the Customer then the Customer will in any case inform the Seller in writing of his objections no later than ten (10) days after this cause ceases to exist.

7. Delivery and transportation

7.1 Unless expressly agreed otherwise in writing, all delivery dates are merely estimates. The Seller will do his best to deliver the Products on the agreed date but he is not liable towards the Customer if the agreed deadline cannot be achieved as the result of causes that reasonably lie outside the Seller’s sphere of influence, such as delays due to transportation and/or to transportation companies or to the Product supplier’s delivery times. The Seller is never liable for losses that result from delays.

7.2 If the Seller is unable to deliver the Products by a time thirty (30) days after the agreed delivery date then the Customer’s sole remedy is that he is entitled to cancel the order. In order to be able to cancel an order, the Customer must send the Seller a letter to this end. The cancellation is only valid if the written cancellation is received by the Seller before the Seller has dispatched the Products.

7.3 The Customer is obliged to inform the Seller of any defects or faults in the Products no later than forty-eight (48) hours after receiving the Products.

7.4 The Customer is obliged to receive the Products on normal working days.

7.5 After the discovery of any defect, the Customer is obliged to promptly stop using, treating, processing or installing the Products in question.

7.6 If some of the Products ordered are not in stock then the Seller is entitled to make partial deliveries and to charge partial dispatch costs. The Seller will inform the Customer about this as soon as possible.

7.7 All Products will be delivered ex works (EXW, Incoterms 2020) in Oss

7.8 The Products to be delivered must always be loaded on a pallet (not floor loaded).

7.9 If the Customer does not want to, or is unable to, accept delivery then he is immediately in default. The Seller may then at his own discretion: (i) store the Products for the Customer’s risk and expense, or (ii) sell the Products at the best price that can be reasonably obtained (after deduction of reasonable costs for storage, insurance and selling expenses), whereupon the Customer will only receive back the difference between the price obtained and the price he paid the Seller, or (iii) offer the Products for delivery again, whereby the additional costs will be borne by the Customer.

7.10 When the Products are handed over, the Customer must sign a delivery receipt. It is the Customer’s responsibility to check himself that the quantity of Products delivered corresponds to the quantity on the dispatch note. If the number of Products stated on the dispatch note differs from the number received or if the Products are damaged then this must be stated on the dispatch note. If the Customer makes no note about this then the Seller will not accept any liability at all for losses and/or for the delivery of an incorrect number of Products.

8. Retention of title and security rights

8.1 The Products fully remain the Seller’s property until the Customer has settled his payment obligations in full with respect to all claims of Seller, including those under Article 3:92 paragraph 2 of the Dutch Civil Code.

8.2 With regard to the Products delivered under retention of title, the Customer is not entitled to sell, let out, dispose of, pledge or encumber them in any way or use them before the full ownership of the Products has passed to the Customer.

8.3 Until the point in time when there is transfer of ownership, the Customer is obliged to take all reasonably possible measures to protect the Products against harm/loss/damage. If third parties actually attach or threaten to attach those items that are delivered under retention of title or wish to impose rights on them or to have rights asserted for them then the Customer is obliged to inform the Seller of this without delay.

8.4 If the Seller wishes to exercise his ownership rights that are referred to in this Article then the Customer hereby gives the Seller (or third parties that the latter designates) his unconditional and irrevocable consent to enter all those locations where the Seller’s property is located and to bring back these items.

8.5 If the Seller is unable to exercise his ownership rights then the Customer is liable for the losses incurred by the Seller.

9. Product recall

9.1 The Customer is obliged to collect and store the data that is needed to track the Products. The Customer must in all cases be able to use this ‘traceability system’ to immediately inform the Seller (in so far as applicable):
1) which Products specifically came from the Seller;
2) which customers the Products delivered by the Seller were sold on to.

9.2 If the Customer becomes aware of an actual or suspected defect in the delivered Products, then the Customer must inform the Seller about this without delay and on his own initiative. The Customer will in all cases state:
1) the type of defect;
2) the production data for the potentially unsafe Products delivered by the Seller;
3) the names of the customers for the potentially unsafe Products delivered by the Seller;
4) all other information that could be of interest, such as but not limited to complaints relating to illness and/or related symptoms.

9.3 If the Seller is of the opinion that more information is needed for the investigation into a potentially unsafe product and/or into the measures to be taken then upon request the Customer will provide all relevant information that he has in his possession or that he could reasonably obtain.

9.4 The Seller and the Customer will then carry out a joint investigation into whether measures are needed (and if so, which ones) to avert the threat caused by a potential defect in the Product delivered by the Seller. The measures to be taken may include the carrying out of a product recall.

9.5 The Seller can oblige the Customer to proceed to undertake a product recall. All costs of this will be borne by the Customer unless the cause of the product recall is the Seller’s deliberate intent or deliberate recklessness or unless and in so far as the Seller’s liability arises from mandatory law.

10. Guarantee

10.1 If a complaint is submitted in good time, correctly and in accordance with the provisions of Article 7.3, and in the Seller’s reasonable view it has been sufficiently demonstrated that the Products do not satisfy the requirements then the Seller will have the choice of either delivering free of charge a non-defective batch of those Products that proved to be defective against the return of the Products that proved to be defective, or to grant the Customer a discount on the purchase price after all, which discount is to be determined in joint consultation. By fulfilling one of the aforementioned performances, the Seller will have completely fulfilled his guarantee obligations and the Seller will not be obliged to pay any further fee or compensation at all.

10.2 If the Seller delivers Products to the Customer that the Seller has obtained from his suppliers then the Seller is never obliged to provide a guarantee or to be liable in respect of the Customer in a way that goes beyond that which the Seller can claim from his supplier.

10.3 The guarantee provided in this Article only applies if the Customer has fulfilled all his obligations towards the Seller.

10.4 The replacement of the Products during the guarantee period does not lead to an extension of this period. Repair or replacement, including the costs of administration, dispatch and transportation, other than on the basis of the guarantee referred to in this Article will be charged to the Customer by the Seller.

10.5 The guarantee is not transferable.

11. Liability

11.1 The Seller’s liability for indirect losses, including consequential loss, lost profits, missed savings, loss of files and/or data, claims by third parties on the Customer and losses due to business interruption and underutilization is excluded at all times.

11.2 The Seller’s liability due to an attributable breach in the performance of the Agreement is limited to renewed delivery or to reimbursement of the direct loss up to a maximum amount of the price paid under the Agreement for the relevant delivery of Products, unless the insurance cover pays out a higher sum.

11.3 A precondition for the arising of any right to compensation is at all times that the Customer provides the Seller with a written notice of default and gives him a reasonable period of time in which to perform.

11.4 The Seller can only be liable if the Customer informs the Seller in writing about the loss no later than thirty (30) days after the loss occurred.

12. Force majeure

12.1 The Seller is not obliged to fulfil his obligations under the Agreement if the Seller is unable or hindered to fulfil them is due to circumstances outside his sphere of influence (force majeure).

12.2 ‘Force majeure’ is deemed to include but not be limited to: strikes, non-delivery (or incomplete and/or delayed delivery) by suppliers, war and risk of war, terrorism, import and export bans, epidemics, pandemics, traffic hold-ups, items lost or damaged during transportation, fire, theft, and breakdowns in power supply.

12.3 Upon the occurrence of any event of Force Majeure, the Party suffering thereby shall promptly inform the other Party by written notice thereof specifying the cause of the event and how it will affect its performance of its obligations under the Agreement. In the event of any delay, the obligation to deliver shall be suspended for a period equal to the tie loss by reason of Force Majeure. However, should a Force Majeure event continue or be expected to continue for a period extending to more than 60 (sixty) days after the agreed delivery date, either Party is entitled to cancel the affected part of the Agreement without any liability to the other Party.

13. Early termination

13.1 Without prior notice of default and without being in any way liable for losses or costs, and without waiving any other right, the Seller is entitled to suspend his obligations or to terminate the Agreement in whole or part or to terminate it early if:
a) the Customer fails to fulfil his payment obligations or other obligations;
b) the Customer becomes insolvent or there is a threat of this occurring;
c) the Customer has already applied for a suspension of payments or intends to do so;
d) the Customer no longer has freely available liquid or other funds due to attachment or other reason;
e) the Customer is dissolved or plans to be dissolved;
f) the ownership of the Customer is transferred to a third party or else the third party has gained any control;
g) the Seller’s good name and reputation is harmed by the Customer’s acts or omissions or could potentially be harmed by the;
h) circumstances occur that are of such a nature that the Seller cannot be reasonably required to fulfil his obligations.

13.2 If the above events occur then the claims that the Seller has on the Customer become due and payable immediately in their entirety.

14. Intellectual property rights and advertising

14.1 All designs, technical drawings, calculations, samples and similar that relate to the Products remain the property of the Seller at all times and must not be duplicated, altered, transferred or given on loan to third parties without the express prior written consent of the Seller.

14.2 The Seller retains all intellectual property rights that arise under the Dutch Copyright Act or under other legislation.

14.3 The Customer guarantees that he will not breach the intellectual property rights of either the Seller or the Seller’s suppliers and will not further process the Products without the prior written consent of the Seller.

14.4 The Customer will not partially or fully remove or make invisible the identifying marks and/or other marks on the Products or the packagings.

14.5 Without the prior written consent of the Seller, the Customer is not permitted to utilize any intellectual property right, including trade names, as part of his business operations, trade names and/or brand names and/or domain names.

14.6 Apart from under the license obtained under the Agreement, the Customer will never make any claim to any intellectual property right or other right relating to the Seller, and unless the Customer has the prior written consent of the Seller he will not make any registration of or perform any other act anywhere in the world in respect of the intellectual property rights and Products.

14.7 If the Customer identifies a breach of the Seller’s intellectual property rights then he will inform the Seller of this immediately. The Seller can then decide whether to take action against an actual or threatened breach. In this case, the Customer is obliged to provide all the cooperation that may be reasonably expected of him. Unless the Customer has the prior written consent of the Seller, he is not permitted to act at law or extrajudicially against a breach.

14.8 The Customer guarantees that he will strictly comply with all relevant legislation and regulations when reselling the Products. Amongst other things, the Customer is not permitted to use the brand name or other name or other intellectual property rights of the Seller for the purposes of advertising to children aged under 13 years. The Customer indemnifies the Seller and will compensate him for any loss that the Seller incurs as a result of non-compliance.

15. Customer data, privacy and confidentiality

15.1 The Seller will only collect data on the Customer in so far as necessary for the execution of the Agreement. The data will be used, in so far as permitted by law, for the business operations of the Seller or of those companies or third parties affiliated with him, and will not be stored for longer than necessary for his business operations. The Customer gives the Seller his irrevocable consent for the usage and storage of his personal and other data.

15.2 The Customer warrants the correctness of the personal and other data he provides and will notify the Seller immediately if there are changes to it.

15.3 The Seller is entitled to provide the personal and other data of the Customer to third parties if:
a) this is necessary for the fulfilment of the obligations under the Agreement;
b) on behalf of the Seller third parties take payment collection measures or other measures against the Customer;
c) the Seller wishes to have a credit rating report drawn up;
d) the Seller is obliged to do so by virtue of legislation or regulations.

15.4 The Seller and the Customer reciprocally undertake to maintain confidentiality about all information and data that they receive from each other in the context of either the Agreement or its execution during the term of the Agreement and after it ends.

16. Private label

16.1 If deliveries are made under a Private Label then the following additional terms and conditions apply.

16.2 Unless the Customer has the prior written consent of the Seller, he is not permitted to use colors, styles, designs and other manifestations that bear a resemblance to the Seller’s corporate identity and intellectual property rights in such a way that confusion or association with the Seller and/or his products can arise.

16.3 The Customer will independently obtain all the permits, licenses, authorizations and other documents needed to resell the Products and will strictly comply with all applicable national legislation and regulations that relate to product safety.

16.4 Unless agreed otherwise in writing, the Seller will be responsible for the delivery of packaging materials. The Customer is obliged to comply with all the Seller’s directions and instructions that are necessary for or are related to the production of packaging materials.

16.5 The Seller will deliver the specifications of the Products in the Dutch, English and German languages. The Customer is himself entirely responsible for the correct stating of specifications on the packagings, as well as for the delivery of accurate translations of the specifications (if applicable). The Customer indemnifies and will compensate the Seller for all losses that the Seller may incur as the result of incorrect specifications on the packagings.

16.6 The Customer is aware that the packagings will be ordered by the Seller in large quantities. The Customer is obliged to buy all the packagings bought in by the Seller and to do so no later than one year after the Seller receives the packagings. If the Customer fails to do this then the Seller is entitled to charge the Customer in one lump sum for all the costs of the packagings that the Customer did not purchase, irrespective of whether the Customer still wishes to receive the packagings.

16.7 Unless agreed otherwise in writing, the Customer is obliged to pay all costs related to the production of the packaging materials. Seller shall at all times pass on the printing plate costs and other costs related to new or altered packaging.

17. Other points

17.1 Unless the Customer has the Seller’s prior written consent, he is not entitled to transfer any right arising from the Agreement to third parties. The limitation on transferability has an effect under both the law of obligations and property law as referred to in Article 3:83 paragraph 2 of the Netherlands Civil Code. The Customer gives the Seller the right in advance to transfer the rights arising from the Agreements in whole or part to third parties.

18. Applicable law and disputes

18.1 These Terms and Conditions and the Agreement are governed by Dutch law.

18.2 All disputes with Customers who are established in the European Union that arise either from Agreements or from agreements that stem from them will be solely submitted to the competent court in the district of East Brabant (Oost-Brabant), ‘s-Hertogenbosch location, in the Netherlands. Disputes with Customers who are established outside the European Union that arise either from Agreements or from agreements that stem from them will be settled in accordance with the arbitration regulations of the NAI (the Netherlands Arbitration Institute) by a single arbitrator who will be appointed in accordance with the list procedure, whereby the arbitration location will be ‘s-Hertogenbosch (the Netherlands), and the proceedings will be conducted in the Dutch language, unless the Seller elects to institute litigation in the country in which the Customer is established, this without prejudice to the Parties’ right to make provisional arrangements.

18.3 The applicability of the Vienna Sales Convention is expressly excluded.