Commercial Conditions
General Terms and Conditions of Delivery – Ebro Ingredients B.V.
1 DEFINITIONS
1.1 The following definitions apply in these general terms and conditions of delivery (the “Terms and Conditions”):
Agreement: every agreement for the delivery of Products that is finalised between Ebro Ingredients and the Customer, every amendment or addition thereto, and also all (legal) acts in the preparation and execution of that agreement;
Customer: Ebro Ingredients’ contracting counterparty;
Ebro Ingredients: Ebro Ingredients B.V., having its registered office in Amsterdam, the Netherlands, with an office address at Lassiestraat 1, (1531 MG) Wormer, the Netherlands, registered in the Business Register of the Chamber of Commerce under number 56450885, and any other company affiliated to it now or in the future, insofar as that company has declared the Terms and Conditions to be applicable;
Order: the Customer’s order for one or more Products;
Products: the Products to be sold and delivered by Ebro Ingredients to the Customer pursuant to the Agreement.
2 APPLICABILITY
2.1 These Terms and Conditions apply to all offers, Orders and Agreements between Ebro Ingredients and the Customer.
2.2 The applicability of general terms and conditions or stipulations of the Customer or third parties is expressly rejected and declared inapplicable by Ebro Ingredients.
2.3 The Customer with whom an Agreement has once been concluded on the basis of the Terms and Conditions agrees that these Terms and Conditions apply to subsequent Agreements.
2.4 Changes to the Agreement and deviations from and additions to the Terms and Conditions only apply insofar as they are expressly accepted by Ebro Ingredients in writing and apply only to the Agreement to which they relate. In the Terms and Conditions, “written” or “in writing” also means “by email”.
2.5 Ebro Ingredients has the right to amend the applicable Terms and Conditions unilaterally. If that is done, the most recent text of these Terms and Conditions always applies.
3 OFFERS, FORMATION OF AGREEMENTS; STATEMENTS AND DESIGNATIONS OF PRODUCTS
3.1 Any verbal Offers or promises only bind Ebro Ingredients after and to the extent that Ebro Ingredients has confirmed them in writing.
3.2 Ebro Ingredients is only bound if an Agreement has been concluded in writing with the Customer, or if and insofar as Ebro Ingredients executes a Customer’s Order.
3.3 The contents of Ebro Ingredients’ website, leaflets, printed matter etc. do not bind Ebro Ingredients, unless that content is explicitly referred to in the Agreement.
3.4 Any new offer renders previous price quotations null and void. Unless otherwise stated on the offer, a price offer is valid for a period of seven (7) days only.
3.5 If there is an Agreement with more than one Customer, all such Customers are jointly and severally liable to fulfil all obligations incumbent on one Customer under the Agreement.
3.6 The Agreement between Ebro Ingredients and the Customer is entered into for the duration mutually agreed by the parties in the Agreement. If nothing is specified in the Agreement, the Agreement is for an indefinite period of time.
4 VOLUME ARRANGEMENTS
4.1 Purchase obligations for Products are binding and apply as agreed between the parties in the Agreement and/or Order.
4.2 The volumes to be purchased by the Customer must be evenly distributed across the calendar year and/or contract period, unless the parties agree otherwise in advance in writing with a specific forecast.
4.3 Agreements are binding in terms of contract period and volume. Purchases by the Customer of the Products (i) to the extent that they exceed the agreed volume or (ii) outside the agreed contract period will result in the need to conclude a new Agreement between the parties, unless otherwise agreed in writing.
4.4 If the Customer fails to honour the agreed contract volumes and/or purchase obligations, Ebro Ingredients will be entitled to demand performance, without prejudice to Ebro Ingredients’ other rights under the Agreement or the law.
5 AMENDMENTS AND ADDITIONS
5.1 Amendments and additions to any provision in the Agreement and/or the Terms and Conditions only apply if and insofar as they are recorded in writing by Ebro Ingredients and only apply to the relevant Agreement.
5.2 If one or more of the articles in these Terms and Conditions is declared inapplicable by a court, the remaining provisions will remain in full force and effect. The parties undertake to replace a non-binding article with one that is binding and that differs as little as possible from the non-binding article.
6 PRICES
6.1 All prices of Ebro Ingredients are expressed in euros (EUR) and exclude turnover tax (VAT).
6.2 Unless expressly agreed otherwise in the Agreement, Ebro Ingredients is entitled to adjust its prices for new Orders.
6.3 Prices are based on the circumstances and cost factors applicable to Ebro Ingredients at the time of the conclusion of the Agreement, including, inter alia, exchange rates, purchase prices of raw materials, energy prices, freight rates, import duties, excise duties, levies and taxes levied directly or indirectly on Ebro Ingredients. If prices undergo a change, after the conclusion of the Agreement but before delivery of the Products, due to a substantial increase of the aforementioned factors, Ebro Ingredients will be entitled to adjust the agreed prices accordingly. If the Customer does not agree to the proposed changes, the Agreement will be terminated for the remaining volume to be delivered under the Agreement.
7 PAYMENT
7.1 Subject to the condition that Ebro Ingredients’ credit insurance provides cover, the Customer will pay Ebro Ingredients the amounts charged to it, effective in the currency stated on the invoice, within 30 calendar days after the invoice date, unless the parties agree otherwise in writing, observing the statutory frameworks for the statutory payment period. All payments are to be made in the manner specified by Ebro Ingredients.
7.2 All amounts charged to the Customer must be paid without discount or deduction, unless a payment discount has been agreed in the Agreement. The Customer is not entitled to set-off without consent from Ebro Ingredients. If Ebro Ingredients grants permission for set-off, Ebro Ingredients charges the Customer for the administrative costs it has incurred in that respect, and the balance of an invoice against which any amount is set off must be paid within the period applicable to that invoice, even if Ebro Ingredients has not yet sent a credit note in relation to the set-off. The Customer is likewise not entitled to suspend any payment obligation to Ebro Ingredients.
7.3 The Customer is in default on the mere expiry of the payment period. In that case, all claims of whatever nature by Ebro Ingredients against the Customer become immediately due and payable.
7.4 The Customer is due default interest equal to the then current statutory commercial interest rate in the Netherlands on all amounts not paid by the last day of the payment period.
7.5 If the Customer is in default to Ebro Ingredients, it is obliged to pay Ebro Ingredients in full for the extrajudicial and judicial costs. The extrajudicial costs to be paid by the Customer are at least 15% of the unpaid amount, with a minimum of EUR 500, plus the turnover tax (VAT) due thereon.
7.6 If Ebro Ingredients sends payment reminders or other requests for payment to the Customer after the Customer is in default, this does not detract from the provisions in Articles 7.3, 7.4 and 7.5.
8 RETENTION OF TITLE
8.1 Ownership of the Products, notwithstanding actual delivery, only passes to the Customer after it has paid in full all that it owes or will owe Ebro Ingredients under any Agreement.
8.2 Until ownership of the Products delivered is transferred to the Customer, the Customer is only entitled to transfer or process the Products if that act is in the ordinary course of its business.
8.3 In case of attachment, (provisional) suspension of payment or bankruptcy, the Customer will immediately and of its own accord inform the attaching bailiff, administrator or receiver of Ebro Ingredients’ ownership rights. The Customer guarantees that an attachment of the Products will be lifted immediately.
8.4 The Customer is obliged:
- to mark all Products in respect of which the retention of title applies as the property of Ebro Ingredients;
- to insure and keep insured all Products to which the retention of title applies against theft, fire, explosion, water damage and pest damage, to allow Ebro Ingredients to inspect the relevant insurance policy or policies and to provide Ebro Ingredients, if so requested, with all necessary cooperation in the establishment of a pledge in favour of Ebro Ingredients on all claims which the Customer has against its insurance company by virtue of this/these insurance policy/policies;
- to cooperate fully with any reasonable request from Ebro Ingredients for protection of its property that does not unreasonably interfere with the Customer in the normal conduct of its business.
8.5 If and insofar as the Customer has not paid the agreed price for the delivered Products, the Customer, if it has delivered the Products delivered by Ebro Ingredients on to a third party, is obliged when Ebro Ingredients so requests to lend all necessary cooperation in the creation of a pledge in favour of Ebro Ingredients over all claims by the Customer against that third party on account of that onward delivery, without prejudice to Ebro Ingredients’ other rights under the Agreement or the law.
9 DELIVERY PERIOD
9.1 The delivery time starts when Ebro Ingredients has received all data necessary for the execution of the Order and after the Order has been confirmed.
9.2 A delivery date stated by Ebro Ingredients is approximate, based on the circumstances applicable to Ebro Ingredients at the time of confirmation of the Order. Ebro Ingredients will observe this delivery date as far as possible.
9.3 If the delivery date is exceeded, the Customer is not entitled to any compensation in this respect. In that case, the Customer is also not entitled to dissolve the Agreement, unless the delay beyond the delivery date is such that the Customer cannot reasonably be required to uphold the relevant part of the Agreement. In that case, the Customer is entitled to dissolve the Agreement as far as strictly necessary.
9.4 Ebro Ingredients is at all times entitled to deliver by instalments and to invoice for them separately.
10 DELIVERY AND RISK
10.1 Unless otherwise agreed explicitly in writing, the Products are delivered by Ebro Ingredients as referred to in the Incoterms 2020 or at least the most recent version of the Incoterms at the time of the conclusion of the Agreement.
10.2 The delivery and transfer of risk of the Products always occurs at the place where and time when Ebro Ingredients delivers the Products. Unless otherwise agreed, the place of delivery is the address where the Customer is based. Delivery and transfer of risk occurs before the Products are unloaded from the means of transport. Unloading is at the Customer’s risk.
10.3 Ebro Ingredients informs the Customer as soon as possible in writing of the date and time when Ebro Ingredients can deliver the Products. The Customer must ensure that delivery of the Products can be taken at the agreed place, date and time.
10.4 If Ebro Ingredients cannot deliver the Products in full to the Customer at the agreed place and date (for example but not limited to insufficient silo space and/or waiting time), the additional costs for transport and otherwise will be charged in full to the Customer.
10.5 If the Customer does not take delivery of the Products or does not take delivery in time, it will be in default without notice of default and the Customer will be obliged to compensate all resulting loss. In that case, Ebro Ingredients is entitled to store the Products at the Customer’s expense and risk or sell them to a third party. The Customer continues to owe the purchase price, plus interest and costs (as compensation), less however, where applicable, the net proceeds of the sale to that third party.
11 FORCE MAJEURE
11.1 If Ebro Ingredients cannot fulfil its obligations to the Customer due to a non-attributable failure (force majeure), fulfilment of those obligations will be suspended for the duration of the force majeure situation.
11.2 If the state of force majeure lasts for three months, either party will be entitled to terminate or dissolve the Agreement in writing in whole or in part, to the extent justified by the force majeure situation.
11.3 In case of force majeure, the Customer is not entitled to any compensation (for damage or loss), even if Ebro Ingredients derives any advantage from the force majeure.
11.4 Force majeure means any circumstance independent of the will of Ebro Ingredients in which the fulfilment of its obligations to the Customer is fully or partially prevented or in which Ebro Ingredients cannot reasonably be required to fulfil those obligations, whether that circumstance was foreseeable when the Agreement was concluded or not. These circumstances include: raw-materials shortages, natural disasters, epidemics, pandemics, extreme weather, disturbances, partial or complete closures of or hazards in airspace, on the open seas or on waterways, strikes and lockouts, blockades, war or the threat of war, riot, sabotage, stagnation, fire or other forms of destruction within the business, lockouts and industrial actions, machinery or equipment breakdowns or other business disruptions, or other production problems at Ebro Ingredients or at its suppliers (including equipment damage rendering production impossible at Ebro Ingredients and including lack of raw materials) and/or with its own transportation or transportation provided by others, devaluation, increase in import duties and/or excise duties and/or taxes and/or measures taken by any government body, whether valid or not, and also the absence of permits to be obtained from the government and workforce illness.
11.5 Ebro Ingredients will inform the Customer of an actual or impending force majeure situation as quickly as possible.
11.6 If Ebro Ingredients has already partially fulfilled its obligations or can only partially fulfil its obligations when the force majeure arises, it is then entitled to invoice what has already been delivered and the Customer is then obliged to pay this invoice as if it were a separate contract.
12 CONFORMITY, INSPECTION AND COMPLAINTS
12.1 Unless otherwise agreed in writing, the Products are at all times deemed to comply with the Agreement if they meet the specifications stated in the Agreement.
12.2 Immediately upon delivery of the Products, the Customer is obliged to check (or arrange for a check to be made) whether these Products outwardly comply with what has been agreed in this respect and whether there are no defects. For example, the Customer must check that the correct Products have been delivered in the correct quantity, that the packaging is undamaged and that the delivered Products meet the agreed specifications. Complaints must be reported to Ebro Ingredients in writing no later than two calendar days after delivery, under penalty of forfeiting the right to complain.
12.3 Latent defects that could not reasonably be discovered within the period stated in Article 12.2 must be reported to Ebro Ingredients in writing immediately after they have been discovered or should reasonably have been discovered and no later than two (2) months after delivery, under penalty of forfeiting the right to complain.
12.4 After the discovery of any defect, the Customer is immediately obliged to discontinue the use, treatment and/or processing of the relevant Products and furthermore to do and refrain from doing everything reasonably possible to prevent (further) damage.
12.5 The Customer will lend every cooperation necessary for the investigation of the complaint, including by giving Ebro Ingredients the opportunity to investigate the circumstances of use, treatment and/or processing, or to have these investigated.
12.6 The Customer will lend all cooperation necessary for investigation of the complaint. If the Customer does not cooperate or if investigation is otherwise not or no longer possible, the complaint will not be considered and the Customer will have no claims in this respect. The Customer must prove that the defect in the Products occurred during the guarantee period. If the complaints turn out to be unfounded, the costs of investigating the complaint will be borne by the Customer.
12.7 The Customer may not derive any rights from the consideration of a complaint.
12.8 The Customer may not return the Products before Ebro Ingredients has agreed to this. Ebro Ingredients is only financially liable for the costs of return if a timely, correct and justified complaint has been made.
12.9 If the Customer complains about defects in a Product in a timely, correct and justified manner, any resulting liability for Ebro Ingredients is limited to the obligations stated in Articles 13 and 14.
13 OBLIGATIONS OF EBRO INGREDIENTS
13.1 Ebro Ingredients warrants to the Customer that, upon delivery, the Products meet the specifications expressly agreed between the parties. The deviations common in the industry are in any event permitted.
13.2 The Customer is obliged at all times to provide all useful and necessary information, in writing and/or electronically, in good time and otherwise to cooperate with the performance of the Agreement by Ebro Ingredients. The Customer guarantees the accuracy, completeness and reliability of the information it provides, even if it comes from third parties. If information necessary for the performance of the Agreement is not available to Ebro Ingredients, or not in time, or is not correct and complete or does not comply with the arrangements made, or if the Customer does not fulfil its obligations in any other way, Ebro Ingredients is entitled to suspend the performance of the Agreement and to charge the resulting costs at its normal rates. If the Customer still remains in default after having been formally warned, Ebro Ingredients will be entitled to terminate the Agreement with immediate effect and without any obligation to pay compensation.
13.3 Ebro Ingredients is not liable for damage or losses arising because Ebro Ingredients has relied upon incorrect and/or incomplete data and information provided by the Customer.
13.4 Ebro Ingredients will act in accordance with the applicable legislation and regulations in the Netherlands regarding the Products. Insofar as the Customer will be selling and/or delivering the Products in countries other than the Netherlands, the Customer must ascertain that the Products it orders and the corresponding documentation, packaging, labelling and/or other information comply with all requirements set by the government in the destination country with respect to the Products. The Products supplied by Ebro Ingredients are not deemed to be packaged or labelled in accordance with the applicable labelling legislation or regulations, in the broadest sense, for the end user.
13.5 Ebro Ingredients is never bound by a more extensive guarantee to the Customer than the guarantees under which Ebro Ingredients can enforce claims against its own suppliers. Ebro Ingredients will inform the Customer about these guarantees at the Customer’s request.
13.6 Provided that a complaint has been made in time, correctly and in accordance with the provisions of Article 12 of these Terms and Conditions, and it has been sufficiently demonstrated that the Products do not comply with what has been agreed in this respect, Ebro Ingredients may, at its discretion, choose either to replace the Products (or parts thereof) found to be defective with new Products (or parts thereof) upon their return, or upon return of the Products (or parts thereof) found to be defective, to refund the purchase price thereof or to credit the invoiced amount, or to grant the Customer a discount on the purchase price to be determined by mutual agreement. If Ebro Ingredients acts in accordance with one of the aforementioned situations, it will be fully discharged in respect of its obligations.
13.7 In case of defects, Ebro Ingredients is never liable for damages to the Customer and the provisions of Article 13.6 apply.
13.8 There is no right to guarantee obligations if, without prior written consent from Ebro Ingredients, changes have been made to the Products, the Products have been used for purposes other than those for which they were intended or the Products have otherwise been handled or maintained improperly (including unsuitable packaging, incorrect or incomplete instructions for use, incorrect storage or lack of or incomplete warning of particular uses and dangers and incorrect and incomplete instructions for use) as well as if the Customer is in default vis-à-vis Ebro Ingredients. Damage resulting from normal use and/or wear and tear and ageing of the Products is also excluded from the guarantee. Only the Customer may make guarantee claims against Ebro Ingredients.
13.9 Subject to applicable mandatory provisions, the guarantee set out in this Article 13 applies directly to the Customer alone and not to its customers, agents or representatives and supersedes all other warranties, whether express or implied. Ebro Ingredients hereby specifically excludes all other guarantees. 13.10 Subject to the exclusions and restrictions set out in Article 14 of the Terms and Conditions, the foregoing reflects the entire liability of Ebro Ingredients and its affiliates in relation to defective Products or Products that do not comply with the specifications.
14 LIABILITY AND INDEMNITY
14.1 Any liability of Ebro Ingredients to the Customer is limited to a maximum of the amount paid out by Ebro Ingredients’ insurer in the relevant case.
14.2 Ebro Ingredients is not liable under either the law or the Agreement, for so-called damage that the Customer or a third party may suffer in relation to the execution by Ebro Ingredients of the Agreement and/or the Products (and their use), including commercial loss, environmental damage, consequential damage, damage for delay, loss of profit, disappointed expectations and (other) non-material damage and damage due to violation of third party rights including intellectual property rights. Ebro Ingredients is also not liable if the Customer has mixed all or part of the Products with products delivered by third parties.
14.3 If, for whatever reason, there is no payment under Ebro Ingredients’ liability insurance, Ebro Ingredients’ liability is limited to a maximum of the net invoice amount received for the relevant Products that caused the damage.
14.4 All claims by the Customer lapse if they are not brought before the competent court within six (6) months after the Customer or the third party became aware or could reasonably have become aware of the facts on which it bases its claim.
15 IMPLEMENTATION OF THE AGREEMENT
15.1 The Customer exercises due care towards Ebro Ingredients, taking Ebro Ingredients’ interests into account to the best of its knowledge and ability. The Customer allows Ebro Ingredients to fulfil its legal and contractual obligations and ensures that, for its part, nothing will stand in the way of meeting certain agreed time limits, including delivery and acceptance dates. The Customer may not use or allow any improper or illegal use of Ebro Ingredients’ Products, including use that is contrary to any legislation and/or regulations or assists in serious offences or is damaging to Ebro Ingredients.
15.2 The Customer is obliged to make available all information which Ebro Ingredients, in its opinion, needs for the correct performance of the Agreement, on time and in the desired form. The Customer warrants the accuracy, completeness and reliability of that information.
15.3 Without the Customer’s consent, Ebro Ingredients will not use the information made available to it within the context of that execution of the Agreement for any purpose other than that for which it was obtained.
16 CANCELLATION, DEFAULT, TERMINATION
16.1 Unless the Agreement is for a fixed period, Ebro Ingredients and the Customer may terminate the Agreement in writing at any time, observing a three-month notice period.
16.2 If the Customer does not properly or promptly comply with any obligation it may have under any Agreement, the Customer will be in default without notice of default and Ebro Ingredients will be entitled: (i) to suspend the performance of that Agreement and directly related Agreements until payment is sufficiently secured; or (ii) to rescind or terminate that Agreement and directly related Agreements, in whole or in part, without Ebro Ingredients being liable for any damages.
16.3 In case of a full or provisional suspension of payment, bankruptcy, discontinuation or dissolution of the Customer’s business, all Agreements with the Customer will be terminated or dissolved by operation of law, unless Ebro Ingredients notifies the Customer within a reasonable time that it requires performance of all or part of the Agreements concerned. In the latter case, Ebro Ingredients will be entitled to suspend performance of the Agreement without notice of default until the Customer’s performance is sufficiently secured.
16.4 Obligations which by their nature are intended to continue even after termination or dissolution of the Agreement continue in full force and effect.
17 TRANSFER OF RIGHTS AND OBLIGATIONS
17.1 Ebro Ingredients is allowed to transfer the rights and obligations described in any Agreement with the Customer to third parties.
17.2 The Customer is not entitled to transfer its obligations under an Agreement to any third party, without Ebro Ingredients’ prior written consent. This is a non-transferability clause within the meaning of section 3:83(2) of the Dutch Civil Code and this clause has effect under property law. This clause also prevents the underlying claim(s) from being validly pledged.
18 CONFIDENTIALITY
18.1 The Customer will keep secret all information and/or data and/or trade secrets within the meaning of the Dutch Trade Secrets Protection Act (Wet bescherming bedrijfsgeheimen), including but not limited to recipes it obtains within the context of the performance of the Agreement, and will not disclose them to third parties – with the exception of third parties it engages in the performance of the Agreement – without Ebro Ingredients’ written consent.
18.2 The Customer undertakes to Ebro Ingredients to impose the obligations set out in the preceding paragraph of this article on those (including employees of the Customer) charged with the performance of the Agreement on behalf of the Customer and warrants to Ebro Ingredients that these persons will comply with this obligation.
19 APPLICABLE LAW, COMPETENT COURT
19.1 These Terms and Conditions, as well as the Agreement, are governed by Dutch law. The applicability of the Vienna Sales Convention 1980 (CISG) is explicitly excluded.
19.2 All disputes arising from the Agreement or these Terms and Conditions will, insofar as not otherwise required by mandatory law, in the first instance be subject exclusively to the judgment of the competent court in Amsterdam, on the understanding that Ebro Ingredients has the right to bring claims against the Customer, concurrently or not, before other judicial bodies with jurisdiction to consider such claims.
These Terms and Conditions have been filed with the Amsterdam Chamber of Commerce under number 56450885.