Unless the context shows otherwise, any words and expressions which have been capitalized in these General Conditions are defined terms to which the following meaning is assigned:
“Article”: a provision of these General Conditions.
“Bioriginal”: Bioriginal Europe/Asia B.V. Bioriginal Europe/Asia MD B.V., having its corporate seat at Rotterdam, the Netherlands and its principal office at (3258 AC) Den Bommel, the Netherlands, at Bosland 40.
“Contract”: each contract between Bioriginal and the Purchaser which is concluded in accordance with Article 3.4;
“Delivery”: the delivery of the Products as defined in Article 4.1;
“General Conditions”: these general conditions of sale of Bioriginal;
“Products”: any movable goods and/or services which are delivered or to be delivered by Bioriginal, including information Bioriginal provides to the Purchaser during their legal relationship;
“Purchaser”: the potential counter party or counter party of Bioriginal, being at any rate but not limited to the party to which Bioriginal invoices the Products;
“Specification”: a separate document which stipulates, without any exemption, all quality requirements, and the limitations thereof, for each type of Product for which Bioriginal accepts responsibility.
2.1. THE APPLICABILITY OF THE GENERAL TERMS AND CONDITIONS USED OR REFERRED TO BY THE PURCHASER IS HEREWITH EXPLICITLY REJECTED.
2.2 These General Conditions are applicable to all legal relationships of Bioriginal acting as potential seller, or seller of the Products.
2.3 Stipulations deviating from these General Conditions must be made in writing and signed by Bioriginal and the Purchaser.
2.4 Whenever “written” or “in writing” is used in these General Conditions it shall also mean by fax, email, internet or any other electronic medium.
3.1 Offers made by Bioriginal are without engagement. Any offer made by Bioriginal with respect to a Product shall be regarded as a new and separate offer which shall replace any previous offers made by Bioriginal with respect to that Product.
3.2 Unless agreed otherwise in writing, all offers are based on the assumption that the Contract will be executed under normal labour conditions and during normal working time. If the Contract is not executed under normal labour conditions and conditions and/or under normal working time, the Purchaser is obliged to pay any additional costs related thereto to Bioriginal.
3.3 Bioriginal may terminate its negotiations with the Purchaser at any time without giving reasons and without having to pay any compensation whatsoever.
3.4 A contract between Bioriginal and the Purchaser is concluded, if Bioriginal confirms the Purchaser’s order in writing, or if Bioriginal commences the execution of the order placed by the Purchaser (the “Contract”).
3.5 The Purchaser hereby explicitly releases its right to rescind or reject or invoke annulment on the basis of article 6:227c paragraphs 2 and 5 of the Dutch Civil Code, if and to the extent that the Purchaser acts as a professional party.
4.1 Unless agreed otherwise in writing, Delivery of the Products will be done Ex Works (INCOTERMS 2020).
4.2 In the event that, in derogation of the provisions of Article 4.1 of these General Conditions, the Purchaser does not arrange for transport of the Products, Bioriginal will do so at its discretion, at the cost, for the account and risk of the Purchaser.
4.3 The time for Delivery indicated by Bioriginal will only serve as an estimate and is not of the essence. Bioriginal shall not be in default until Bioriginal is given a notice of default by the Purchaser after the agreed time for Delivery has lapsed or after the lapse of the extended time for Delivery referred to in Article 4.4 and Bioriginal has been granted a reasonable time for Delivery of at least 1 (one) calendar month to fulfill its obligations which has also lapsed without Bioriginal having fulfilled its obligations.
4.4 In case Bioriginal cannot timely perform its obligations under the Contract, Bioriginal shall give a notice of default to the Purchaser in writing as soon as possible, without Bioriginal being obliged to pay the Purchaser any compensation.
4.5 Bioriginal is entitled to deliver in consignments and to invoice such Deliveries separately.
4.6 The Purchaser will accept Delivery of the Products at the agreed time and location. Should the Purchaser fail to accept such Delivery, Bioriginal shall store the Products for the account and risk of the Purchaser. The Purchaser shall be liable for any and all extra costs, including but not limited to a statutory interest increased with 3 (three) % incurred by Bioriginal as a result thereof.
4.7 Weights, numbers and composition of the delivered Products shall be determined by weighing, counting and analyses in accordance with the methods used by Bioriginal, subject to proof to the contrary. Bioriginal may take, retain and store sample of the Products at the time of pre-shipment analysis, in accordance with industry practice, to determine compliance with respect to the Specification of the Product, quantity and weight of the Product. The pre-shipment analysis of Bioriginal shall be conclusive proof of conformity to such Specifications and determinative of delivered quantities and weights, in each case for all purposes.
4.8 Minor deviations, whether positive or negative, with respect to the agreed quantities, weight and/or composition of the Products, shall be accepted by the Purchaser and do not result into any change of the price. For consumer packaging a maximum error percentage of 0% for content, 0% for configuration, 2% for appearance and 0.5% for closing is valid unless indicated otherwise in the specification. The customer is responsible for correctness of information and artwork of the label. Bioriginal checks/supports only on food fraud/mitigation and measurements of the label. Bioriginal checks the measurements of the label and supports on correctness of information.
4.9 Illustrations, catalogues or samples of the Products are only provided as an indication to which the delivered Products do not have to confirm.
4.10 Bioriginal is not obliged to make inquiries about the intended use of the Products or the circumstances in which the Products will be used. The Purchaser shall be fully liable for any use of the Products.
4.11 Bioriginal only warrants that at Delivery (a) each Product is fit to be used for its intended use and is of such quality as required for human consumption meaning that it complies with the applicable requirements imposed in that regard by any competent Dutch (governmental) authority and (b) each Product is in conformity with its respective Specification. All other warranties are excluded to the largest extent authorized by law.
4.12 Bioriginal expressly reserves the right, but accepts no obligation, to make such changes in the Specification of the relevant Product as are necessary to ensure that the relevant Products conform with any applicable statutory requirements or to address raw material issues and the Purchaser shall not be entitled to object to or reject the Products by reason of any such changes.
4.13 The Purchaser cannot claim under the warranty given under Article 4.11 after it has processed, confused or otherwise integrated all or part of the delivered Products with its own products, products delivered by third parties or other Products delivered by Bioriginal, nor after it has delivered the Products to third parties.
4.14 Bioriginal manufactures both organic products, within the meaning of Regulation EU 2018/848, as well as non-organic products within the meaning of that regulation. When signing/approving this offer, the customer acknowledges that he has been explicitly informed of this and is aware of it.
4.15 To the extent applicable, any packaging, equipment or containers which are returnable, whether owned or leased by and made available to the Purchaser, for the Delivery of the Products, shall remain the personal property of Bioriginal, and shall be emptied following arrival to the Purchaser and shall be cleaned, in a suitable and immediately reusable condition in prompt manner, but in no event longer than 24-hours following its arrival to at the Purchaser. Return of such packaging, equipment and containers, shall be at the Purchaser’s sole cost and expense, including freight costs, no later than 30- days following placement with the outbound carrier.
5.1 The prices of the Products are based upon delivery Ex Works (INCOTERMS 2010) and exclusive of VAT, packaging costs, costs for packaging materials, packaging taxes and analysis cost, unless agreed otherwise in writing.
5.2 Bioriginal may charge to the Purchaser changes in cost price factors relating to the Contract, such as prices of (raw) materials, energy costs, labour costs, insurances, freight tariffs, exchange rates, taxes, duties or other governmental measures, which may occur within 3 (three) calendar months after conclusion of Contract.
5.3 Prices of the Products are only valid for the specific amount (weight or numbers) of the Products and/or the specific time-frame as agreed and stated in the offer from Bioriginal. If no such amount or time-frame is stated in the offer from Bioriginal, then the price of the Products is valid for only 1 (one) Delivery.
5.4 For longer-term Contracts, Bioriginal has the right to modify the prices of the Products once per year based on (i) the [consumer price index] and on (ii) change in pricing of any input or production elements of the Products. In such case, Bioriginal shall notify the Purchaser the new Prices no later than [31 December of the ongoing calendar year], for applicability as of 1 January of the subsequent calendar year. The Purchaser will have fifteen (15) days to refuse such new prices, in
which case he can terminate the Contract ; alternatively, the Purchaser is deemed to have accepted the new Prices.
6.1 Payment is made by the Purchaser within 30 (thirty) calendar days of the invoice date.
6.2 Payment is made by the Purchaser in the agreed currency, without any set-off, discount, and/or suspension.
6.3 All payment-related costs, the provision of securities included, shall be borne by the Purchaser.
6.4 In the event of any payment becoming overdue, the Purchaser is obliged to pay the outstanding amount and statutory interest increased with 3 (three) % over such outstanding amount until such date that payment in full has been received by Bioriginal, without prejudice to any other rights or remedies Bioriginal may have and without a prior written notice of default having to be served. Any unpaid invoices become immediately due and payable and all consequences of non-performance shall become due, effective and/or payable.
6.5 All extra judicial costs, explicitly including costs incurred in respect of drafting and sending demands for payments, conducting settlement negotiations and other acts in preparation of potential legal proceedings as well as all judicial costs which Bioriginal reasonably incurs as a result of the Purchaser’s non-performance shall be borne by the Purchaser.
6.6 Payments by the Purchaser shall be deemed to have been made first to settle the costs referred to in Article 6.5, subsequently to settle the interest due and shall then be charged to that part of the principal amount indicated by Bioriginal, irrespective of indications made by the Purchaser.
In case Bioriginal has good reason to believe that the Purchaser will not strictly or timely fulfill its obligations vis-à-vis Bioriginal, the Purchaser is obliged to provide at the first request of Bioriginal, satisfactory security in the form requested by Bioriginal with respect to the fulfillment of Purchaser’s payment obligations and other obligations under the Contract(s) or to replace or provide additional security in addition to any security already provided. If the Purchaser does not comply with such a request for security within 7 (seven) calendar days of receipt of such request, all consequences of non-performance shall become due, effective and/or payable.
8.1 Bioriginal retains title relating to the Products delivered or to be delivered, until the Purchaser has fulfilled its payment obligations and other obligations with respect to all Products delivered or to be delivered under the Contract, all services to be performed or performed under the Contract as well as all claims based on breach of the Contract.
8.2 The property law aspects with respect to retention of title to the Products that are or are to be exported shall be governed by the laws of the country of destination if and to the extent (a) Bioriginal so elects in its offer and (b) these laws determine that retention of title to the Products remains valid until the price for the Products is paid in full.
8.3 In the event that Purchaser produces (or has produced) new movable goods out of inter alia the Products referred to in Article 8.1, these movable goods will be regarded as having been produced for Bioriginal itself as owner and the Purchaser will detain these movable goods for Bioriginal until the Purchaser has fulfilled all of its obligations referred to in Article 8.1.
8.4 Until the Purchaser has fulfilled its payment obligations in full, the Purchaser is neither entitled to pledge nor to otherwise encumber the Products. Disposal of the Products to third parties is only permitted in the normal course of its business, provided that the Purchaser acts as undisclosed agent (“lasthebber in eigen naam”) of Bioriginal in its own name but for the account of Bioriginal.
8.5 The Purchaser shall notify Bioriginal immediately if third parties exercise rights to Products delivered under retention of title or if the Purchaser becomes aware of third parties intending to do so.
8.6 In case the Purchaser fails to fulfil any of its obligations under the Contract, Bioriginal has the right to repossess the Products delivered and owned by it. Bioriginal shall notify the Purchaser in writing that it wishes to repossess the Products. Upon receipt of said notification the Purchaser has the option to return the Products within 3 (three) working days to Bioriginal at the Purchaser’s cost and expense or to authorize Bioriginal or any third party designated by Bioriginal to enter those premises of the Purchaser where the Products have been stored and repossess the Products. All costs relating to the repossession of the Products by Bioriginal shall be borne by the Purchaser.
8.7 At first request of Bioriginal, the Purchaser is obliged to:
9.1 The Purchaser has the right to claim that the Products do not comply with the warranty. If such claim of the Purchaser under this Article 9 is considered to be justified by Bioriginal, Bioriginal is, at its sole discretion, only obliged to either deliver the lacking part or quantity, replace the Products delivered or to credit the Purchaser the amount paid for the relevant Products in consideration of returning the Products. The Purchaser is obliged to follow the instructions of Bioriginal with respect to the storage and/or return of the Products to be replaced.
9.2 The Purchaser is obliged to inspect the Product directly upon Delivery and inform Bioriginal immediately after detection of any defects or non-conformities. If defects or non-conformities cannot be directly detected after Delivery, the Purchaser is obliged to inform Bioriginal immediately after detection thereof. The Purchaser loses its right to claim that the Products do not conform to the Contract or are defective, if it has not informed Bioriginal immediately after detection thereof in writing by giving reasons, and in any case within 14 (fourteen) calendar days after Delivery of the Products or after such moment that the Defect should reasonably have been detected. If visible defects have not been immediately notified to Bioriginal after Delivery to the Purchaser, the Purchaser loses its right to claim that the Products do not conform to the Contract or are Defective.
9.3 Any claim and/or defense, based upon facts that would justify the claim that the Products delivered do not conform to the Contract or are defective, expires 1 (one) calendar year after the date of Delivery.
10.1 If and to the extent that the Products are Defective as referred to in article 6:186 of the Dutch Civil Code, Bioriginal shall indemnify and hold the Purchaser harmless from and against any and all justified claims for compensation of damage and costs made by third parties or the Purchaser itself that are based on product liability as referred to in articles 6:186 up to and including 6:193 of the Dutch Civil Code. The liability of Bioriginal, if any, is limited to the damage and amount referred to in article 6:190 of the Dutch Civil Code.
10.2 If and to the extent that (a) the Products do not conform to the Contract and/or (b) there are claims by the Purchaser of third parties that do not fall within the scope of Article 10.1, Bioriginal shall, irrespective of the legal basis for a claim, only be liable to compensate for damages up to an amount which is equal to the amount paid by the Purchaser for those Products that caused the damage.
10.3 If and to the extent that the Defect or non-conformity in respect of one or more of the Products which caused the damage did not exist on Delivery and/or (b) the Defect or non-conformity in respect of one or more of the Products is caused, in whole or in part, by the handling of the Product or Products by the Purchaser and/or third parties and/or other acts or omissions by the Purchaser and/or third parties, Bioriginal shall not be liable, whether on the basis of Articles 10.1 and/or 10.2 or otherwise.
10.4 Bioriginal shall, irrespective of the legal basis for a claim, never be liable for consequential losses or damages, including but not limited to loss of profits, loss of revenue, loss of data, incurred losses, costs and expenses, loss of contracts, loss of savings or losses caused by disruption or stoppage of the production and/or the business.
10.5 Bioriginal shall to the fullest extent authorized by law, irrespective of the legal basis for a claim, not be liable for damages and losses caused by gross negligence or willful intent of its employees (“ondergeschikten”) and/or agents (“niet-ondergeschikten”) for whom Bioriginal is responsible by law.
10.6 Bioriginal shall, irrespective of the legal basis for a claim, not be liable for any health claims made in respect of the Products delivered.
10.7 The limitations of liability referred to in Articles 10.1 and 10.2 do not apply if and to the extent that the liability of Bioriginal for damages is insured under any of the insurance policies of Bioriginal and the insurer pays out. In that case Bioriginal shall only be liable to compensate for any damages to the extent such damages are covered by the insurance concerned in the matter concerned. Bioriginal is not obliged to exercise its rights under the insurance. For the avoidance of doubt, the provisions of Articles 10.3, 10.4, 10.6 and 10.10 shall remain in full force and effect.
10.8 Bioriginal stipulates all legal and contractual defenses that it can invoke in respect of its liability towards the Purchaser also for the benefit of all persons or legal entities involved in the performance of the Contract.
10.9 Bioriginal may sub-contract, involve and instruct any third party to carry out obligations for Bioriginal under the Contract and may invoke any limitations of liability of these third parties against the Purchaser.
10.10 Bioriginal shall not be liable, irrespective of the legal basis for a claim, for damage which has been caused by Products which were used after expiration of their shelf-life.
10.11 Both the Purchaser and Bioriginal may request a recall of the relevant Products in the event that: (a) there is a reasonable basis for food/feed safety concerns relating to the Products delivered to the Purchaser pursuant to a Contract or as a result of other conditions mandated by relevant applicable laws, rules or regulations, including EU regulations and directives or (b) there is a reasonable basis to believe that the Products do not meet applicable food/feed safety laws, rules or regulations, including EU regulations and directives. The nature and urgency of any recall will be determined by the Parties jointly, whereby the Parties shall always try to mitigate any damages and costs to be suffered or incurred as a result of or in connection with a recall. Once the decision to recall one or more of the Products has been taken, the recall will be coordinated by Bioriginal. Each party shall bear a proportionate share of the cost of the recall based on such party’s degree of fault, if any.
11.1 If (a) a party fails to comply with any of its obligations under the Contract(s) or (b) an application for a (preliminary) suspension of payments is made by a party or granted to a party or (c) any arrangements with a party’s creditors are made; and/or (d) an application for bankruptcy is filed with regard to a party or a party is declared bankrupt, the other party is entitled to terminate the Contract(s) with immediate effect or to rescind the Contract(s), in whole or in part, or to suspend the (further) performance of its obligations under the Contract(s), all such without prejudice to any other rights or remedies this party may have and without any compensation being due by this party.
11.2 If a party terminates or rescinds the Contract(s) in accordance with Article 11.1, without prejudice to any other rights or remedies this party may have, any and all claims of this party may have vis-à-vis the defaulting party shall become immediately due and payable.
11.3 If the Purchaser has not purchased and accepted Delivery of the full amount of the Products within the time frame stated in the offer of Bioriginal or if the time frame stated in the offer of Bioriginal has lapsed, Bioriginal is no longer obliged to supply the Products, and may at any time decide to terminate the Contract by way of law on the day said time frame has lapsed without any compensation whatsoever being due by Bioriginal.
11.4 If the Purchaser or Bioriginal cannot properly perform its obligations in whole or in part, whether temporarily or permanently, as a result of one or more circumstances which are not at the affected party’s risk and which are listed in Article 11.4 (force majeure), the affected party is entitled to rescind the Contract(s), in whole or in part, or to terminate the Contract(s) with immediate effect, without any compensation being due by the affected party.
11.5 Force majeure is limited to the following circumstances which are in no event at the risk of the party affected by force majeure are: crop failure of the Products or ingredients for the Products and/or the raw materials required for the production of the Products, whether in whole or in part, whether worldwide or in the country or countries of origin of the Products and/or the raw materials required for production of the Products, non-compliance with (non-branch conform) quality and/or hygiene and/or food/feed safety requirements for the Products in the country or countries where the Products have to be processed and/or delivered, governmental regulations or orders which prohibit or restrict the use of the delivered Products or the Products to be delivered, cost price factor increases, shortage of raw materials and auxiliary materials for the production of the Products, labour shortage, strikes or lock-outs, limitations/prohibitions of in- and/or export, transportation problems, disruption in the production process of the Products, nature-/nuclear disasters, war, danger of war, threats of war, terrorist activities and/or threats of terrorism, diseases, epidemics and calamities which cause the production facilities of Bioriginal or the Purchaser to stop producing, such as but not limited to fire, lightning, damage by water, power failure or power shortage.
11.6 Each party shall notify the other party in writing forthwith of an event of force majeure and to what extent the party affected by force majeure will be able to continue to deliver or accept
Delivery of the Products. Bioriginal shall never be obliged to purchase additional Products and/or raw materials required for production of the Products from third parties in case of shortage. If the quantity of Products available with Bioriginal is not sufficient to deliver to all its customers, Bioriginal is entitled to allocate the deliveries in such a way which seems appropriate to Bioriginal.
12.1 The Purchaser is only permitted to use the trade names, logo’s, patents, copyrights, trademarks and/or any other intellectual property rights of Bioriginal if and to the extent of Bioriginal specifically agreed in the Contract.
12.2 Each Party undertakes that it will not at any time disclose any confidential information concerning the Contract(s), any and all offers and orders, or concerning the business and affairs of the other party, except (a) to the extent required by applicable law, including but not limited to stock exchange rules, or by any competent authority but in that case only (where permitted by law) after consulting with the other party about the timing and content of such disclosure; (b) to its professional advisers subject to a duty of confidentiality and only to the extent necessary for any lawful purpose; and (c) to the extent that at the date hereof or hereafter such information is or shall become public knowledge, otherwise than through unlawful disclosure of which that party at the time of disclosure was or could reasonably have been aware that it was unlawful. In no event shall either party use the other party’s confidential information for any purpose other than lawfully performing its obligations under the Contract(s). Confidential information shall comprise but not be limited to: price lists, customer data, know-how, Specifications and all other information received in any form by a party from the other party.
12.3 Bioriginal shall not be liable, irrespective of the legal basis of a claim, for the use or infringement of the Purchaser’s proprietary knowledge and/or the Purchaser’s intellectual property rights which are applicable to the Products, unless such liability has been agreed upon in writing before Delivery.
12.4 Where the Purchaser is a group company as referred to in article 2:24b of the Dutch Civil Code at the time of the conclusion of a Contract, Articles 12.1 up to and including 12.4 shall apply equally to each member of the group of companies to which the Purchaser belongs.
13.1 Dutch law shall be applicable to all legal relationships between Bioriginal and the Purchaser, with the exception of the provisions of the United Nations Convention on Contracts for the International Sale of Goods (1980).
13.2 The competent court in Rotterdam has exclusive jurisdiction to settle all disputes arising under or in connection with any Contract or the performance of any Contract as well as any disputes regarding these General Conditions.
If any provision of these General Conditions is invalid or unenforceable, the invalidity or unenforceability of such provision shall not affect the other provisions of these General Conditions which shall remain in full force and effect. Bioriginal shall substitute any invalid or unenforceable provision with a valid and/or enforceable provision which achieves to the greatest extent possible the objectives of the invalid or unenforceable provision.