AGB

GENERAL TERMS AND CONDITIONS of Fluère Drinks B.V. (hereinafter referred to as Fluère Drinks) Article 1: Applicability of the terms and conditions and content of agreements 1.1  These general terms and conditions shall apply to every offer and quotation from Fluère Drinks and to every agreement (in any form whatsoever) between Fluère Drinks and the other party. (“Other party” is every natural or legal person or legal entity or any partnership with which Fluère Drinks wishes to conclude or has concluded an agreement.) These general terms and conditions will also apply on subsequent and supplementary agreements. 1.2  The applicability of the other party’s general terms and conditions is explicitly rejected and excluded. 1.3  Deviations from these general terms and conditions are only valid if explicitly agreed in writing or electronically between Fluère Drinks and the other party. 1.4  Fluère Drinks reserves the right to change these terms and conditions. The other party shall be notified of such a change by e-mail or via letter no later than thirty days before it takes effect. 1.5  An agreement between Fluère Drinks and the other party is concluded when Fluère Drinks has confirmed the acceptance of an order or instruction from the other party in writing or electronically or a different written agreement has been signed by Fluère Drinks and the other party; the scope and content of the agreement follows from the written or electronic record, in that case the written or electronic confirmation by Fluère Drinks. 1.6  Any change and/or partial cancellation or complete cancellation of an order or instruction or agreement, by or at the request of the other party, can only take place with the prior written permission of Fluère Drinks and provided that the work already carried out by Fluère Drinks and/or delivered goods which (cannot or are not allowed to be) returned shall be fully reimbursed/paid for by the other party; in case of change and/or partial cancellation at the request of the other party, Fluère Drinks is entitled to charge the associated (extra) costs to the other party and to determine the delivery time again. Article 2: Prices 2.1  Fluère Drinks charges the prices as stated in the offer to the other party. The other party cannot derive any rights from the prices that have been quoted to other parties. 2.2  Prices are based on delivery to the previously agreed address in the way that has been stipulated in the offer or afterwards agreed by the other party and are always exclusive of VAT. 2.3  The prices for other parties explicitly exclude government levies, such as excise duties. 2.4  An exception to Article 2.3. holds that in cases when other Dutch parties that do not poses a bonded warehouse nor do they have the required permit, the prices include excise duties. 2.5  Fluère Drinks is entitled to pass on changes in purchase prices, wages, rent, exchange rate changes and other relevant costs. 2.6  For other parties that use a currency other than the euro, the exchange rate of the date of the offer determines the prices. 2.7  When annual agreements have been made between Fluère Drinks and the other party, the resulting benefits (such as bonuses, discounts, etc.) will not accrue to the other party if the agreement between the parties is terminated prematurely before the contract year has expired.   Article 3: Risk 3.1  The risk with regard to the goods sold and/or to be delivered to the other party by or on behalf of Fluère Drinks transfers to the other party at the time of delivery to the other party or the place indicated by the other party, unless and insofar as otherwise agreed in writing. 3.2  Irrespective of what may otherwise have been agreed with regard to the risk, the loading of the goods will be at the expense and risk of Fluère Drinks.   Article 4: Delivery and delivery time 4.1  The goods shall be delivered by Fluère Drinks or sent for delivery to the agreed place or places in the way stipulated in the offer or agreed afterwards. 4.2  Fluère Drinks will not be in default if the agreed delivery time is exceeded. Only if Fluère Drinks has been given a further and reasonable period and the party does not deliver within that further period for reasons attributable to him, there may be a default. 4.3  The other party must report any immediately visible defects, shortages and damage within 24 hours of delivery in writing directly to Fluère Drinks, failing which the goods will be deemed to have reached the other party in good condition, complete and without damage. The commitment shall nonetheless apply not only to Article 3, but Articles 5 and 8 of these terms and conditions. 4.4  If the goods are not accepted by the other party within the delivery time or delivery period, Fluère Drinks is entitled to invoice the goods in question to the other party, and Fluère Drinks is also entitled to store these goods at its own discretion, but entirely at the expense and risk of the other party. In the event of non-acceptance by the other party within the applicable term, according to his own choice, Fluère Drinks can demand fulfilment by the other party or can dissolve the agreement, without prejudice to the right of Fluère Drinks, in either case, to claim damages.   Article 5: Quality, guarantee and service   5.1  Fluère Drinks only sells and supplies consumables. 5.2  No guarantee is provided for consumables. 5.3  The consumables/goods delivered by Fluère Drinks only count as defective within the meaning of the law if the other party demonstrates that they do not meet the statutory quality requirements applicable at the time of entering into the agreement. 5.4  Fluère Drinks commits to the other party to properly package the goods (unless the nature of the goods prevents it) and in this way to protect them in order for them with normal transportation to reach their destination in good condition.   Article 6: Liability 6.1  Except if and insofar as stipulated otherwise by provisions of compulsory law regarding (product) liability, Fluère Drinks is not obligated to pay any compensation for damage of any kind to any goods or a person. 6.2  Any liability of Fluère Drinks is at all times limited to damage directly caused and is at all times limited to the amount reimbursed in that specific case by  the liability insurer of Fluère Drinks; if necessary, at the request of the other party, Fluère Drinks shall provide information up to what amount Fluère Drinks is insured. 6.3  With regards to goods that Fluère Drinks has used from a third party, the relevant transaction (contract and/or guarantee) provisions also apply to the other party, if and insofar as Fluère Drinks invokes them. 6.4  The other party shall indemnify Fluère Drinks against any claims from third parties which in connection with the implementation of the agreements between the other party and Fluère Drinks suffer damage and of which the cause is accountable to someone other than Fluère Drinks.   Article 7: Involvement of third parties 7.1  Fluère Drinks is authorised to make use of third parties for the execution of the agreement; the costs of this shall be passed on to the other party in line with the quotations provided. 7.2  Fluère Drinks does not accept any responsibility for the way in which third parties perform their activities and is not liable for shortcomings on the part of those third parties, except in the case of deliberate intent, gross negligence or wilful recklessness on the part of Fluère Drinks. 7.3  Fluère Drinks is authorised to accept, on behalf of the other party, conditions that apply in the relationship between the contractor and third party or those which are established by the third party, including limitation of liability, without prior consultation with the other party. Fluère Drinks will be entitled to rely on such terms and conditions to the extent that they regard the performance of the assignment by such third party.   Article 8: Claim 8.1  Without prejudice to the provisions of Articles 3 and 4 of these conditions, any claims (also with regard to invoices) can only be processed if they have been received in writing, motivated/specified by Fluère Drinks, within eight days of delivery. For hidden defects, claims can only be made within three months of delivery of the relevant goods. 8.2  Submitting a claim never discharges the other party from his payment obligations towards Fluère Drinks. Settlement is excluded under Article 11 of these Terms and Conditions. 8.3  Returning the delivered goods or any part thereof, for whatever reason, can only take place with prior express written permission and shipping instructions from Fluère Drinks.   Article 9: Transfer of ownership, reservation of ownership 9.1   Without prejudice to the provisions of Article 3 of these terms and conditions regarding the risk and the transfer thereof, all goods delivered by or behalf of Fluère Drinks remain the property of Fluère Drinks until the completion of payment of all that the other party owes to Fluère Drinks, on whatever ground. 9.2   In the case of non-payment of any claimable amount payable to Fluère Drinks by the other party and, furthermore, in the case that the agreement is terminated, Fluère Drinks shall be entitled to reclaim the goods as its property for which ownership reservation applies and to take the relevant measures (or to have them taken), taking into account any payments already made for the goods, this without prejudice to the right of Fluère Drinks to demand compensation for possible loss or damage. 9.3   The other party is obliged to keep the goods of which the property still rests with Fluère Drink clearly separated from other goods and with the appropriate care and is obliged to insure the goods against loss or damage caused by fire, explosion or theft. 9.4   The other party may not dispose of the goods which are still retained by Fluère Drinks, in any other way than suits the normal course of its business, this does not in any way include using those goods to provide security. 9.5   The other party must render all assistance to Fluère Drinks in exercising of its reservation of ownership in the cases referred to in the above paragraphs, subject to forfeiture of a penalty of EUR 500 per day. All costs of return are payable by the other party. 9.6   If third parties levy attachment on the goods delivered by Fluère Drinks subject to reservation of ownership, the other party shall be obligated to inform Fluère Drinks thereof as soon as possible. 9.7   If for the packaging and the transport, Fluère Drinks has supplied containers, packing cases, crates, containers etc. or or has had these supplied by a third party – either in exchange for payment of a deposit or otherwise, the other party shall be obliged (unless disposable packaging is concerned) to return these containers, etc. to the address stated by the seller, failing which the buyer shall owe the seller damages. Different agreements can be made in mutual consultation.     Article 10: Payments 10.1       Unless agreed otherwise in writing, payment must carried out within the payment term indicated on the invoice or the quotation. 10.2       The date on the Fluère Drinks’ bank or giro statement when the payment is recorded as received applies as the date of which the payment has occurred. 10.3       Each payment by the other party shall be used first for the settlement of any interest due and then for any collection and administration costs owed to Fluère Drinks, and after that, for the settlement of any open claims in order of age beginning with the oldest. 10.4       Suspension and settlement by the other party are explicitly excluded. The invoices of Fluère Drinks must be paid in due time without any claims of suspension or settlement by the other party. 10.5       In case of non-payment or late payment or termination of the agreement any claim that Fluère Drinks has against the other party becomes immediately due. Furthermore, Fluère Drinks has then the right to suspend compliance with all his obligations under agreements between the parties and to withdraw any discount agreements. 10.6       At its own discretion, Fluère Drinks can require the other party to provide sufficient security for payment or to pay (in part) in advance. If the security or advance payment is not received within the reasonable period of time determined by Fluère Drinks, Fluère Drinks is entitled to suspend his commitment under the agreements existing between the parties and (after having given notice) to dissolve the agreement in whole or in part, without prejudice to his right to compensation. 10.7       If the other party continues to owe any payment, Fluère Drinks is entitled to set off these outstanding claim (s), for example, by means of discount that has been paid or is due to the other party.   Article 11: Default and the consequences thereof 11.1        The Other Party will be liable for ensuring that a payment or the settlement of any other obligation occurs on time without the need for a reminder, summons or in default declaration. 11.2       If a payment owed by the other party to Fluère Drinks is not carried out on time, the other party will automatically owe the statuary commercial interest rate in accordance with Dutch law as of the day on which the payment term has expired. 11.3       All judicial and extra-judicial costs, including the costs of legal aid and legal advice to be incurred by Fluère Drinks, are to be borne by the other party. The extra-judicial collection costs are estimated at 15% of the amount owed by the other party, including the interest owed thereon, without prejudice to Fluère Drinks’ right to claim damages from the other party for the actual collection costs made if these are more than the 15% specified.   Article 12: End of agreement 12.1        In the event of default by the other party, Fluère Drinks will be entitled to terminate and/or dissolve the agreement without judicial intervention, without prejudice to Fluère Drinks’ right to claim damages, to make use of the rights resulting from reservation of ownership, and to take other (legal) steps, and without prejudice to the right of Fluère Drinks to demand fulfilment (with compensation) of the agreement instead of its termination. 12.2        Fluère Drinks shall be able to terminate the agreement with the other party with immediate effect if: a.    the other party has declared bankrupt, goes into administration, presents a request for suspension of payment, or if the other party (temporarily or definitely) is granted a suspension of payment or if there is a seizure of the total assets of the other Party or a part thereof; b.    the other party, when this is a natural person, dies, is being placed under legal restraint or when the Debt Rescheduling Act is declared applicable, or a similar law applies to him in another country, then the goods of the other party is put under administration; c.     if the Other Party, when this is a legal person: goes into liquidation, or if a claim for the dissolution of the Other Party is made or a dissolution decision with respect to the Other Party has been or is taken. 12.3       If an agreement is cancelled or dissolved pursuant to the provisions of this article, the amounts that the other party owes to Fluère Drinks at the time of cancellation or dissolution will remain fully owed and the other party will owe the interest and costs with regard to these amounts in accordance with the provisions of these conditions, without prejudice to the right of Fluère Drinks to claim damages and the other rights of Fluère Drinks.   Article 13: Resale 13.1       When reselling the goods, the other party will observe the distribution agreement (s) agreed with Fluère Drinks. 13.2       The other party is obliged, except with explicit previous consent by Fluère Drinks, to continue to trade goods that Fluère Drinks supplies to him in consumer packaging in the same packaging and without change of their good condition. 13.3       Orders/purchase quantities and purchase information and other (personal) information of the other party required for the execution of the agreement (s) will be stored by Fluère Drinks. Fluère Drinks is entitled to provide this information to the supplier of the ordered goods.   Article 14: Intellectual property 14.2       All intellectual property rights relating to the website, recipes and logos of Fluère Drinks are vested in Fluère Drinks. 14.3       It is not permitted without the permission of Fluère Drinks to publish, reproduce and or edit, in whatever form, from the website of Fluère Drinks.     Article 15: Applicable law and dispute resolution 15.1       Dutch law applies to all offers, agreements, deliveries and services produced or brought out, entered into, performed or executed by or on behalf of Fluère Drinks, with the explicit exclusion of the applicability of the treaty of the United Nations concerning international trade agreements relating to movable goods (Vienna Trade Treaty). 15.2        All disputes, including those that are only considered as such by one party, that arise from or are related to an agreement to which these conditions apply or the implementation thereof and which cannot be resolved amicably, will be settled by the competent judge of the District Court of Middelburg as a judge at first instance, on the understanding that if a particular judge is compulsorily designated as a competent judge, the dispute will be settled by the judge so designated as a judge at first instance.   Article 16: Validity of terms and conditions 16.1       In the event that any provision of these conditions is wholly or partly not valid and/or unenforceable, this will have no consequences for the validity of all other provisions of these terms and conditions. 16.2        If a provision of these terms and conditions happens not be valid, but would be valid if it had a more limited range or scope then this provision will be automatically valid with the most far-reaching or extensive range or scope with which or within which it is valid.