Terms and conditions
of the private company with limited liability BERGBANKET B.V.
Article 1: General
- These conditions apply to all offers by Bergbanket B.V., located in Moerkapelle, hereinafter referred to as: “Bergbanket", and agreements between Bergbanket and the other party whereby Bergbanket acts as producer or seller of confectionery products and associated products, all in the broadest sense of the word.
- These conditions also apply to all agreements with Bergbanket that involve third parties for the execution thereof.
- Any departures from these conditions only apply if agreed in writing between Bergbanket and the other party to Bergbanket, and will only apply to the particular agreement the departures were created for. In all other respects these conditions remain in force.
- Any general conditions, under whatever name, of the other party to Bergbanket are explicitly dismissed.
- If any provision of these conditions appears to be invalid, parties are deemed to have agreed a substitute stipulation that is as close as possible to the invalid stipulation in terms of purpose and meaning, and will not have any effect on the validity of the other provisions.
Article 2: Formation of agreements
- All offers are without obligation, unless explicitly indicated otherwise. Bergbanket is not bound until Bergbanket has accepted or confirmed an order in writing.
- If there has been no prior written acceptance of an order, the agreement is formed when Bergbanket fully or partly complies with a request to execute an order by the other party, or when Bergbanket sends the other party an invoice.
- Amendments to an agreement require written consent by Bergbanket. If the other party wishes to amend a concluded agreement, it is obliged to pay Bergbanket for any loss, including lost profits and all costs arising from the amendment.
- Any arrangements, undertakings or notifications by Bergbanket's employees are only binding if these have been confirmed in writing on behalf of Bergbanket by the relevant authorised persons.
- All documents and details provided by Bergbanket as part of an offer, have been provided to the best of their knowledge but are not binding on Bergbanket; Bergbanket is, at all times, entitled to make any amendments to these.
Article 3: Prices
- Prices are in Euros, excluding VAT and other government levies, unless parties have explicitly agreed otherwise.
- If any changes to one or more of the factors determining prices, such as purchase prices, wage costs, (energy) charges, taxes, currency rates and such, take place after an offer was made or after an agreement was formed, Bergbanket is entitled to amend the agreed price accordingly. Bergbanket will inform the other party of the price change in writing as soon as possible.
Article 4: Payment conditions
- Bergbanket will always be entitled to require further security for payment before commencing or continuing the execution of an agreement.
- Unless otherwise agreed, the other party must pay the price and any other payable amounts under the agreement within 30 (thirty) days after the invoice date, without relying on any discounts, setoff or delay. Unless agreed otherwise in writing, payment must be made by means of a bank transfer on a bank account designated by Bergbanket. The payment date will be the date Bergbanket's bank account is credited with the amount.
- Until the other party has paid the amounts owed by him, in so far as they are due and payable, Bergbanket is entitled to postpone compliance of their obligations.
- In the event of the payment term being exceeded, the other party will be in default by operation of law without any other notice of default or warning being required, and the other party must then pay the statutory interest over the outstanding amount as stipulated in section 6:119a of the Dutch Civil Code (BW) from the time the payment term was exceeded until the date payment has been made in full.
Article 5: Order of payments
Any payments made by the other party serve to settle all outstanding interest and costs and subsequently to settle all due and payable invoices that have been outstanding the longest, even if the other party states that payment relates to a later invoice.
Article 6: Delivery term
- A term quoted by Bergbanket within which one or more products will be delivered, will only serve as an indication, unless it is indicated explicitly in writing that it concerns a final date.
- Bergbanket will no longer be bound to the agreed final date of delivery if the other party has not complied with an obligation ensuing from the agreement or has not carried out something that is reasonably necessary or appropriate in order to enable delivery by Bergbanket.
- With the exception of gross negligence on the part of Bergbanket, any failure to meet the final delivery date does not entitle the other party to full or part termination of the agreement or compensation.
Article 7: Method of delivery, transport
- Unless agreed otherwise, delivery will be at the location where Bergbanket operate their company. The other party is obliged to give its full cooperation to the delivery of products to be delivered by Bergbanket under the agreement. The other party, even without having been sent a demand, will be in default, if it does not collect the products for delivery upon Bergbanket's first request, or if delivery to its address has been agreed, refuses to receive these products.
- Any agreed transport of the goods for delivery will be at the expense of the other party, unless delivery carriage paid has been agreed. Bergbanket is free to choose any transporter and any method of transport and will arrange this to the best of their knowledge, without bearing any liability for this. If the other party is not prepared or capable to receive the products or arranging for these to be received, Bergbanket may regard the products as delivered and store and insure these for a reasonable period at the expense and risk of the other party. In this case the other party is obliged to provide sufficient security for the storage and insurance costs. Without prejudice to the provisions above, the risk with regard to the products to be delivered by Bergbanket will transfer to the other party once the products have been delivered by Bergbanket.
- Bergbanket is allowed to deliver products in part consignments. This does not apply if a part delivery has no independent value. If products are delivered in part consignments, Bergbanket is entitled to invoice each part consignment separately.
Article 8: Retention of title
- All products delivered to the other party remain Bergbanket's property for as long as the other party has not fully fulfilled all its obligations towards Bergbanket with regard to the products that have been or are to be delivered to the other party by Bergbanket under an agreement, including with regard to any demands by Bergbanket due to a failure to comply with such agreements.
- Without prejudice to any other rights Bergbanket is entitled to, if the other party does not and/or does not fully comply with its obligations as referred to above and/or does not do so in a timely manner, Bergbanket is entitled to retrieve and take possession of the delivered products without any further notice of default or court intervention. All costs incurred as a result of this are to be reimbursed to Bergbanket by the other party. The other party is, at all times, obliged to give Bergbanket, or any persons allocated by them, access to the location where the relevant products are held.
- The other party is not entitled to hold, dispose of, pledge or transfer the title of any products that are still the property of Bergbanket based on the above, apart from disposal during the normal company activities. The other party is obliged to take care of and maintain any products that remain Bergbanket's property and to insure these against any risks of damage, loss and destruction. If any third party impounds any products delivered under retention of title or wants to establish a right to or lay claim to these, the other party is obliged to immediately inform Bergbanket accordingly.
- If the products that are still Bergbanket's property, are sold on to third parties and these third parties have not yet or have not fully paid the outstanding sale price for these, the other party will be obliged to pledge the relevant debts to Bergbanket at Bergbanket's first request, subject to a penalty of € 2,500 (two thousand five hundred Euros) for each day the other party is in default of complying with this obligation.
Article 9: Complaints
- Bergbanket is only obliged to deal with any complaints if these have been sent to them by registered mail, state sufficient grounds and have been presented within two days after receipt of the products, or if the other party was not able to detect the fault sooner, within two days of detection of the fault. The other party must check the products for any faults immediately after receiving the products. By not observing the aforementioned period and rules any claims made by the other party with regard to the alleged complaints will become void.
- The other party cannot assert its rights towards Bergbanket with regard to any complaints, as long as the other party has not complied with an obligation towards Bergbanket arising from the agreement.
- A complaint with regard to the execution of the agreement cannot affect the rights and obligations of parties with regard to agreements executed previously and agreements yet to be executed, even if these will be executed as part of the same agreement.
Article 10: Liability
- It is the other party's responsibility to determine if the products for delivery are suitable and legally allowed for the purpose the other party intends to use these for. If the products to be delivered in the Netherlands, are intended for use outside the Netherlands, Bergbanket is not responsible for these products complying with any requirements, standards and/or regulations set by laws or provisions of the country the products are intended for.
- Any liability of Bergbanket, for whatever reason, including liability arising from these conditions, will always be limited to the maximum amount of any insurance pay out. In a case where the insurance does not provide cover or will not pay out, the liability is limited to the amount the other party has already paid or will have to pay to Bergbanket at the time the damage occurred.
- Without prejudice to the provisions in paragraph 2, Bergbanket is never liable for any indirect damage, such as resulting from a stoppage, delay or interruption of business operations or any other trading loss, for whatever reason or of whatever nature, including any direct or indirect damage caused by services delivered by them or personnel employed by them, inflicted directly or indirectly to products or persons, which ever or whoever. Bergbanket is also not liable for any infringement of patents or licences as a result of using details which were provided by or on behalf of the other party.
- In the case of any liability of third parties towards Bergbanket for reasons of or in connection with a (not timely, faulty or incorrect) execution the limits of Bergbanket's liability are likewise as described in paragraph 2 and 3. The other party indemnifies Bergbanket against any further liability towards third parties.
Article 11: Force majeure
In case of force majeure Bergbanket has the choice to postpone execution of the agreement, amend the contents of the agreement or cancel the agreement, without being obliged to pay for any damage incurred by the other party as a result of this. In the case of cancellation of the agreement Bergbanket will be entitled to payment for all they have carried out until the time of cancellation.
Force majeure includes any circumstance beyond Bergbanket's control, foreseeable or not, which partly or fully stops the execution of the order or makes it difficult to such an extent that it cannot reasonably be required from Bergbanket. Any shortcomings by Bergbanket in complying with the agreement may not be attributed to them, if these are not their fault, or are not their responsibility under the law, the agreement or generally accepted practice.
Article 12: Termination
- If the other party, despite having been given proper notice of default, continues to be in breach of its obligations, including if it has been declared bankrupt, applies for a moratorium, is placed under administration, ceases or transfers its company, is to be liquidated, its products are all or partly seized or if the other party dies or is dissolved (as a legal person), Bergbanket will be entitled to terminate all agreements with the relevant other party without any further notice of default or court intervention or postpone the execution thereof, at the choice of Bergbanket, without prejudice to Bergbankets right to claim damages as a result of such a termination or postponement.
- In the case of termination or postponement as referred to above, all demands of Bergbanket on the relevant other party will become immediately due and payable.
- In the case of termination as referred to above, if required by Bergbanket the other party is obliged to purchase any products that are being processed by paying for the work that has been carried out by Bergbanket up to the time of termination. If the other party does not comply with this obligation, Bergbanket is entitled to store or sell the products in a manner to be determined by Bergbanket, at the choice of Bergbanket. The costs for storage are at the expense of the other party. The proceeds of the sale are deducted from the amount that is payable to Bergbanket by the other party.
Article 13: Costs
Any costs Bergbanket, in their opinion, shall have to incur to preserve or exercise their rights against the other party, both in and out of court, will be charged to the other party.
Article 14: Disputes
A dispute is deemed to exist if one of the parties states that this is the case. Any disputes arising as a result of the agreement between Bergbanket and the other party or of any further agreements concluded between them, will be resolved by a competent court in the Rotterdam district.
Article 15: Applicable law
- Without prejudice to the provisions in paragraph 2 in this article, Dutch law applies to all agreements between Bergbanket and the other party, including these general conditions, unless it has been agreed between parties, explicitly and in writing, that the laws from outside the Netherlands apply. The Vienna Sales Convention is expressly excluded.
- In the case of delivery of products destined for export, the property-law consequences of the retention of title referred to in article 8 of these conditions are governed by the laws of the country of destination of these products if these laws have more favourable provisions for Bergbanket than the Dutch laws.
Article 16: Further provisions with regard to the conditions
These conditions are filed at the office of the Chamber of Commerce in Rotterdam under number 29014981. In the case of a dispute about the interpretation of any of the provisions of these conditions, the Dutch text of the conditions applies. The most recently filed version
or the version valid at the time of the formation of the most recent agreement always applies.