Purchase conditions
Continental Candy Industries B.V | De Bolder 40 | 9206 AN Drachten | The Netherlands
A. GENERAL PROVISIONS
Continental Candy Industries B.V. is Sedex registered. The purpose of the Initiative is to promote fair business practices in the food supply chain as a basis for commercial dealings. To do so, Continental Candy Industries B.V. is required to respect the principles of good practice.
Article 1 Definitions
1.1
In these General Purchase Conditions (“Conditions”) the following terms will have the following meaning:
(a) Continental Candy Industries B.V.: Continental Candy Industries B.V. with its registered office in Drachten, and its legal successors by universal or particular title;
(b) Contracted Party: any legal person with whom Continental Candy Industries B.V. orders Products and/or Services and/or with whom it enters into discussions or negotiations about the formation of an Agreement;
(c) Order: any order placed by Continental Candy Industries B.V. with the Contracted Party for the delivery of Products and/or the performance of Services, in whatever form;
(d) Products: all items delivered or to be delivered to Continental Candy Industries B.V. for the execution of an Order, irrespective of whether the Order exclusively comprises the delivery of those items or (also) the performance of Services;
(e) Agreement: any agreement concluded between Continental Candy Industries B.V. and the Contracted Party, any change or addition thereto, as well as all legal and other acts in preparation for and/or performance of said agreement;
(f) Services: all activities (in whatever form and by whatever name, for example, service, contracting of work, supplying workers, etc.) carried out by the Contracted Party for or on behalf of Continental Candy Industries B.V., either or not in connection with the delivery of Products;
(g) Term: any term agreed between Continental Candy Industries B.V. and the Contracted Party is a final deadline, unless it is agreed in writing an in an unequivocal manner that it is not a final deadline;
(h) Specification: the description drafted and/or expressly approved by Continental Candy Industries B.V. of Products or Services ordered by Continental Candy Industries B.V., which is included or referred to in the Order or the Agreement. In the absence of such description, the established practice between the parties applies or, in the absence thereof, a description that is customary in the branch;
(i) Defect: any deviation of the Products or Services from the Specification and any other improper functioning of the Products or any Service that has otherwise not been performed correctly;
(j) Work: the work to be carried out by the Contracted Party.
(k) Product recall: All activities that are aimed at or are related to the removal from the traffic of a potentially unsafe product that is located at customers or end users. This includes, but is not limited to, the gathering of information about potentially unsafe products, the investigation into the desirability of taking certain measures, the warning of trading parties and end users, collection actions, monitoring the progress of trading parties and end users, collection actions, monitoring the progress of the measures, etc. Product recall can be initiated in the event that:
(a) a product does not meet a legal standard or;
(b) the product no longer offers the safety that may be expected by the user, or;
(c) there is a suspicion that a product no longer offers the safety that can be expected by the user and the producer wants to prevent possible damage as a result of that possible insecurity.
Article 2 Applicability and void ability
2.1
Except in the event that, also given the nature of the agreed performances or performances to be agreed, other General Terms and Conditions of Continental Candy Industries B.V. apply (such as the General Terms and Conditions of Sale and Delivery), these Conditions are part of all Agreements and apply to all (other) acts and legal acts between Continental Candy Industries B.V. and the Contracted Party, also if said legal and other acts do not result in or are not related to an Agreement.
2.2
The General Terms and Conditions of a Contracted Party of Continental Candy Industries B.V. are reasonably accepted by Continental Candy Industries B.V., if Continental Candy Industries B.V.’s Conditions are also accepted by the Contracted Party. If the Contracted Party does not accept this, Continental Candy Industries B.V. also rejects the general terms and conditions of he Contracted Party.
2.3
Continental Candy Industries B.V.’s General Terms and Conditions of Sale and Delivery (also) apply to all legal and other acts of Continental Candy Industries B.V. and its (potential) other parties in relation to agreements or negotiations with regard thereto, in which Continental Candy Industries B.V. will (wholly or partially) act as seller of goods, service provider or contractor of work. These Conditions have been filed with the Chamber of Commerce number 01058516 and will be sent to the Contracted Party’s on request free of charge.
2.4
Changes and additions to any provision of an Agreement and/or the Conditions can only be agreed in writing.
2.5
If a change and/or addition within the meaning of the previous paragraph is agreed, this change or addition only holds for the specific Agreement.
2.6
If any provision of these Conditions is null and void or is voided, the other provisions of these Conditions will remain in full force and Continental Candy Industries B.V. and the Contracted Party will enter into consultations to agree new provisions to replace the null and void or voided provisions, whereby the purpose and the meaning of the void or voided provision will be taken into account as much as possible.
2.7
In the event that these Conditions are translated, the text of the Dutch version will prevail.
Article 3 Order and acceptance
3.1
All The submission of an offer to Continental Candy Industries B.V. will never entail any financial obligation for Continental Candy Industries B.V. vis-à-vis the party submitting an offer or a third party. All documents enclosed with an offer and the activities carried out by the offeror in that context are entirely free of charge for Continental Candy Industries B.V., unless a fee has been explicitly agreed in advance in writing.
3.2
All Orders of Continental Candy Industries B.V. are non-binding, unless they include a term for acceptance. Insofar as the Contracted Party – in deviation of the provisions in the first sentence of this paragraph –accepts a binding offer of Continental Candy Industries B.V. with deviations of minor importance, these deviations are not part of the Agreement and the Agreement is concluded in accordance with Continental Candy Industries B.V.’s offer.
3.3
Continental Candy Industries B.V. is entitled to terminate the Agreement by means of a written statement for that purpose to the Contracted Party without being obliged to pay any compensation, provided that it does so within 3 business days after receipt of the Contracted Party’s acceptance of Continental Candy Industries B.V.’s Order.
3.4
If Continental Candy Industries B.V. sends an order form to the Contracted Party, the Contracted Party must return this form signed for approval within 5 business days of its date. In the event that Continental Candy Industries B.V. has not received a correctly signed form within 5 business days of its date, it will be entitled to adopt the position that an agreement was not entered into in a legally valid manner.
3.5
Offers and quotations by the Contracted Party are fixed and binding and cannot be changed after the order, unless it concerns an (additional) discount to be granted by the Contracted Party (possibly in the interim).
3.6
No rights can be derived from forecasts given by Continental Candy Industries B.V. to the Contracted Party. Continental Candy Industries B.V. is expressly not liable for any stocks built up by the Contracted Party and/or any obligations entered into in respect of third parties on the basis of these forecasts.
Article 4 Distribution and Agency Agreements
If Continental Candy Industries B.V. regularly concludes Agreements with the Contracted Party during a period of more than a year for the purchase of items that are intended for resale and provided that the Contracted Party knows this or should know this, and if Continental Candy industries B.V. has made any substantial form of marketing effort in respect of these items to which the Contracted Party did not object while it was or should have been aware of this, a distribution agreement for an indefinite period of time will be concluded between parties by operation of law with regard to these items, unless the Contracted Party proves with legally permitted means that despite the foregoing no distribution agreement was concluded.
4.2
If and insofar as Continental Candy Industries B.V. de facto was the only reseller in the Netherlands of these items during the year referred to in paragraph 1, the distribution agreement that was concluded in conformity with paragraph 1 (in deviation of the provisions of paragraph 1) is of an exclusive nature and will firstly have the duration of a year, after which the agreement will be continued for an indefinite period of time, unless one of the parties gave a notice of termination by means of a registered letter subject to a term of three months.
4.3
If Continental Candy Industries B.V. has regularly been effecting agreements between the Contracted Party and buyers for more than a year and/or, with the Contracted Party’s knowledge, has regularly and actively performed substantial intermediary services for that purpose, an agency agreement for an indefinite period of time is entered into between the parties by operation of law with regard to the items concerned, unless the Contracted Party proves by legally permitted means that in spite of the above an agency agreement was not entered into.
4.4
If and insofar as Continental Candy Industries B.V. de facto has been the only party to perform agency activities in the Netherlands during the year referred to in paragraph 3, the agency agreement that was concluded in conformity with paragraph 3 is of an exclusive nature and will (in deviation of the provisions of paragraph 3) firstly have the duration of a year, after which the agreement will be continued for an indefinite period of time, unless one of the parties has given a notice of termination by means of a registered letter with due observance of the statutory period.
4.5
If any Agreement is concluded as referred to above in this article or if the parties concluded such Agreement in another manner, Continental Candy Industries B.V., in the event of termination thereof other than as a result of an attributable shortcoming on its part, will be entitled to a reasonable goodwill, clientele or other compensation.
Article 5 Changes and additions
5.1
Changes and additions to any provisions in an agreement and / or the conditions can only be agreed in writing. Evidence to the contrary in the preceding sentence is not permitted and this Article 5.1 is a proof agreement.
5.2
When a change and / or supplement as referred to in paragraph 1 is agreed, this change or supplement only applies to the relevant agreement.
Article 6 Prices, VAT, payment and setoff
6.1
The prices stated in the Order are fixed and stated in Euros and are exclusive of turnover tax.
6.2
The prices of the Products include the standard packing and delivery carriage paid exempt from import rights. The prices of the Services include all travel and subsistence expenses as well as all other costs. Furthermore, the prices of all Products and Services include all preparatory and other work that is required to comply with the requirements, descriptions and the Specification set by Continental Candy Industries B.V.
6.3
The Contracted Party indemnifies Continental Candy Industries B.V. against all costs and damage that Continental Candy Industries B.V. might incur or suffer as a result from the fact:
(a) that the Contracted Party is not properly registered for turnover tax in a relevant EU member state; and/or
(b) that the Contracted Party provides incorrect details or provides details late to Continental Candy Industries B.V. and/or the authorities in the field of turnover tax in a relevant EU member state.
6.4
Payment by Continental Candy Industries B.V. will not be due until after full and correct execution of the Order and acceptance in accordance with the provisions in article 12. In that event, Continental Candy Industries B.V. will pay the invoice approved by it within 60 days after its receipt, unless otherwise agreed in writing.
6.5
The Contracted Party cannot transfer its claims against Continental Candy Industries B.V. or pledge them (without notice to the debtor) to any third party, except when Continental Candy Industries B.V. has given prior written permission.
6.6
Invoices must meet the legal requirements and must be provided with the order number from Continental Candy Industries B.V.. Continental Candy Industries B.V. is entitled to make payment by means of setoff, also by means of setting off any claims that Continental Candy Industries B.V. may have against the Contracted Party under another Order or on any other basis. Continental Candy Industries B.V. is also authorized to set off any future claims against the Contracted Party or any claims or future claims which Continental Candy Industries B.V. has against the companies and/or enterprises affiliated to the Contracted Party.
6.7
Continental Candy Industries B.V. is always entitled to demand sufficient security from the Contracted Party for the correct performance of its obligations vis-à-vis Continental Candy Industries B.V.
6.8
The Contracted Party is obliged to submit to Continental Candy Industries B.V. its invoice with regard to any amount it is still entitled to in respect of the Order within 28 days after termination of the Order. Continental Candy Industries B.V. is not obliged to pay any invoice which the Contracted Party has submitted after the mentioned Term, unless special circumstances that cannot be attributed to Contracted Party and of which Continental Candy Industries B.V. has been informed in advance in writing, dictate otherwise.
6.9
Payment of an invoice does not discharge the Contracted Party of any guarantee or liability to which it is bound pursuant to the Agreement and/or the law.
6.10
Continental Candy Industries B.V. is entitled to set off any claim that the Contracted Party has vis-à-vis Continental Candy Industries B.V. and/or other companies that are part of the same group as Continental Candy Industries B.V., against any claim that Continental Candy Industries B.V. (and/or other companies that are part of the same group as Continental Candy Industries B.V.) might have in respect of the Contracted Party, regardless of the nature thereof and whether it is due and payable. If Continental Candy Industries B.V. proceeds to set off claims which are not yet due and payable on the part of the Contracted Party, the Contracted Party will owe the statutory commercial interest in respect of the period as from the declaration of setoff until the due date.
6.11
In the event of delay of delivery of ordered Products in accordance with the provisions in article 9, payment within the period stated in paragraph 4 will be due until after the ordered Products have been stored and the invoice has been approved.
6.12
Without prejudice to its other rights, Continental Candy Industries B.V. is entitled to charge the Contracted Party for all actual legal and extrajudicial costs, including the costs of legal assistance, reasonably made or to be made by Continental Candy Industries B.V. for the collection of any amount due or to obtain performance of any obligation of the Contracted Party.
ARTIKEL 7 UITBESTEDING
7.1
The Contracted Party is obliged to carry out the Order itself, unless Continental Candy Industries B.V. has expressly agreed to outsourcing, subcontracting or purchase from third parties, or has given written instructions for that purpose.
7.2
The Contracted Party is fully responsible for any contribution of third parties in the execution of the Order as if it were its own performance.
7.3
The Contracted Party indemnifies Continental Candy Industries B.V. against any claims of third parties involved in the execution of the Order.
Article 8 Execution in a timely manner
8.1
The Term, or any Term set with due observance of article 9, within which the Order must be executed is of essential importance to Continental Candy Industries B.V.. The Contracted Party is in default by the mere exceeding of the dates agreed upon with Continental Candy Industries B.V. on which performances must be carried out. Any penalty agreed upon for this case does not affect the Contracted Party’s obligation of full compensation of damage.
8.2
The Term commences on the date on which the Contracted Party has accepted the Order or – if this is at a later date – on the date on which the Contracted Party has the information, designs, materials or auxiliary materials at its disposal which, as demonstrated by the Order, are to be provided by Continental Candy Industries B.V. and which the Contracted Party absolutely needs – and of which it has informed Continental Candy Industries B.V. in writing – to start the execution of the Order.
8.3
In the event that a Term is exceeded, other than pursuant to a statement within the meaning of article 9, the Contracted Party is obliged to immediately repay Continental Candy Industries B.V. any advance or other payments or guarantee sums it has already received, without the Contracted Party being entitled to set off these amounts against any claims to which it is entitled or any alleged claims it has against Continental Candy Industries B.V.. Furthermore, in that event all personal or collateral securities provided by Continental Candy Industries B.V. or by third parties on its behalf under the Agreement will lapse by operation of law. Contracted Party is obliged to release any guarantors for Continental Candy Industries B.V. from their surety obligations and/or recourse liabilities under the Agreement, or to ensure that they are released from said surety obligations and/or recourse liabilities, subject to penalty payable by the Contracted Party of a sum equal to the sum which the guarantor has undertaken to pay or the value of the collateral security provided.
Article 9 Postponement of delivery
9.1
Continental Candy Industries B.V. is entitled to postpone the delivery of ordered Products and/or the performance of ordered Services for a period of 60 calendar days at most by means of a written statement to the Contracted Party for that purpose, unless postponement would be manifestly unreasonable in view of all circumstances of the case, which manifest unreasonableness must be unambiguously demonstrated by the Contracted Party.
9.2
If Continental Candy Industries B.V. exercises the right referred to in paragraph 1, the Contracted Party will for its own account and risk store the Products separately at a suitable location for the benefit of Continental Candy Industries B.V., take out insurance and take appropriate measures to counter loss of quality. Article 13.2 applies mutatis mutandis.
Article 10 Quality guarantee
10.1
The Contracted Party guarantees the soundness of the Products delivered by it and/or the Services performed by it. At the first request of Continental Candy Industries B.V., the Contracted Party will submit evidence that the Products and the Services comply with the guarantee. The guarantee at least entails that:
(a) the Products and/or Services are suitable for the purpose for which the Order has been placed, insofar as the Contracted Party was aware or could have been aware of this purpose;
(b) the Products are new, the Products and/or Services are of a good quality and are free from faults as regards design, processing, manufacture, construction and dimensions and are free from Defects in the materials used and offer the safety (within the meaning of article 6:186 Dutch Civil Code (hereinafter: “DCC”)) that may reasonably be expected from them;
(c) the Products and/or Services have been manufactured and/or performed in conformity with the latest state of the art; in any event at such an acceptable level that it complies with the most recent requirements set thereto;
(d) the Products and/or Services fully conform to the Specification and possible samples, designs and drawings in respect of quantity, description, quality and performances;
(e) the best-before date of Products of the same type delivered at a later date will at all times be a date later than that of Products of the same type delivered earlier;
(f) all applicable national and international legislation with regard to the Products and/or Services, the packaging of the Products and/or the Services have strictly been taken into account;
(g) the Products and/or the Services in all other respects comply with the requirements that can reasonably be set in that respect.
10.2
Ordered Products and/or Services are in any event considered faulty within the meaning of the previous paragraph if Defects arise within a year after delivery, unless this is the consequence of normal wear and tear or if it can be attributed to intent or gross negligence on the part of Continental Candy Industries B.V..
10.3
Without any limitation of Continental Candy Industries B.V.’s rights to compensation of Costs, damage and interest, the above-mentioned guarantee entails that the Defects that have arisen within a year after delivery will be fully and immediately repaired by the Contracted Party at Continental Candy Industries B.V.’s first request, free of charge, if necessary by replacing the Products or parts thereof, or by performing the Services in question again. Repair will always be carried out on-site, unless this is impossible.
10.4
After repair of Defects, a new guarantee period as described in paragraph 2 will commence and the Contracted Party will guarantee the soundness of the replaced or repaired Products and/or Services as described in paragraph 1.
10.5
If this is necessary in the opinion of Continental Candy Industries B.V. for the safety of persons and/or the progress of the activities, Continental Candy Industries B.V. is entitled to carry out (or have carried out) temporary repairs for the account of the Contracted Party. The Contracted Party is entitled not to pay Continental Candy Industries B.V.’s expenses if it demonstrates that it was not informed of the Defects in question in a timely manner and demonstrates that, had it been informed thereof in good time, it could have repaired the Defects at least as quickly.
10.6
Continental Candy Industries B.V. is entitled to carry out an annual audit at the Contracted Party with regard to the quality of the Products and/or Services. Continental Candy Industries B.V. can have this audit carried out by an external research agency. The Contracted Party will grant its full cooperation to such an audit at no cost. The audit results in an audit report. The Contracted Party is obliged to 9 implement the points for improvement from that audit report within the term stated in the audit report. Continental Candy Industries B.V. is entitled to demand evidence from the Contracted Party that the aforementioned points for improvement have been implemented within the stated term.
ARTIKEL 11 AFLEVERING FRANCO
11.1
Ordered Products must be delivered carriage paid at the place of destination designated by Continental Candy Industries. The Contracted Party is obliged to ensure proper packaging in conformity with all applicable legislation, and the same applies for safety and proper transport. Part deliveries of Products ordered are only allowed if this is explicitly specified in the Order.
11.2
Each consignment must include detailed documents that must contain at least the following: Continental Candy Industries order and article number(s), the name of the Product and/or Products, the description for each Product, the last best-before date for each Product and the Contracted Party’s lot number. These details and any markings stipulated by Continental Candy Industries must also be affixed to the packaging in a sufficiently clear and visible manner. The last best-before date for each Product and the lot number of the Contracted Party must in addition be stated on the consignment note.
11.3
The delivery takes place entirely at the risk of the Contracted Party, also if it uses personnel of Continental Candy Industries in the performance of any act of delivery (the latter with the exception of intent or gross negligence on the part of Continental Candy Industries or its managerial staff).
Article 12 Inspection and repair
12.1
Continental Candy Industries will thoroughly inspect the Products or Services ordered within a reasonable period after delivery.
12.2
Acceptance only means that in Continental Candy Industries preliminary opinion, the appearance of the Products and/or the visible performance or the visible result of the Services is in accordance with the Order. More specifically, acceptance does not bar a later reliance by continental Candy Industries on non-compliance by the Contracted Party in respect of its guarantee obligation stated in article 10 or any other obligation vis-à-vis Continental Candy Industries.
12.3
In the event that Continental Candy Industries rejects the Products and/or Services or in the event that it becomes clear at a later date that said Products and/or Services in the reasonable opinion of Continental Candy Industries do not meet the requirements set by the Agreement and the Order, Continental Candy Industries may – without prejudice to Continental Candy Industries other rights – give the Contracted Party the opportunity to at first request remedy and/or repair the shortcomings and/or Defects that have become manifest, for the Contracted Party’s account and risk. Any additional costs to be incurred, for example in respect of disassembly, transport and/or reassembly will also be for the account of the Contracted Party. After mutual consultations, Continental Candy Industries will reasonably decide in which manner and within which Term the Defects and/or shortcomings must be remedied and/or repaired. The repairs will take place either at the place of delivery, or elsewhere, such at the reasonable discretion of Continental Candy Industries.
12.4
If replacement or improvement of the Products and/or Services within the meaning of paragraph 3 is impossible in the reasonable opinion of Continental Candy Industries, or if the Contracted Party does not comply with the request referred to in paragraph 3 within the Term set by Continental Candy Industries, the Contracted Party is obliged to repay each of the amounts received with regard to the above-mentioned Products and/ or Services to Continental Candy Industries, which amounts may not be set off against any claims or alleged claims the Contracted Party has against Continental Candy Industries. In such event, Continental Candy Industries is entitled to take the necessary steps and may charge Contracted Party for the related costs, including the additional expenses to be reasonably incurred by Continental Candy Industries to acquire replacement Products and/or Services and the costs related to the return and/or destruction of the Products received.
Article 13 Transfer of ownership and risk; right of retention
13.1
Continental Candy Industries will acquire the ownership of the ordered Products upon delivery of said Products.
13.2
The Contracted Party bears the risk of damaging or loss of the ordered Products until the date of the transfer of ownership as referred to in paragraph 1.
13.3
If, in deviation from the provision of article 5.4, payment in full or part in respect of Products not yet finished at an earlier date than stated in said article is agreed on, Continental Candy Industries, by virtue of its advance payment and without any further act of transfer being required, will acquire the ownership of all Products, materials, raw materials and semi-finished products used by the Contracted Party or intended for the execution of the Order. The Contracted Party is obliged to acquire the aforementioned Products, materials, raw materials or semi-finished products wholly free from third-party encumbrances and rights, and to reserve these for Continental Candy Industries.
13.4
The provisions of paragraph 2 remain in full force after a passing of ownership pursuant to either paragraph 3, or the last sentence of paragraph 4.
13.5
The Contracted Party has no right of retention or right of suspension in respect of the ordered Products.
Article 14 Items made available by Continental Candy Industries
14.1
Continental Candy Industries will remain the owner of all items (“Items”) it makes available to the Contracted Party in the context of the Order (including designs, stamps, drawings, tools or other equipment). The Contracted Party will refrain from such acts or omissions in respect of the Items that cause Continental Candy Industries to lose the ownership thereof on account of specification, accession, confusion, or in any other manner whatsoever, unless it has obtained Continental Candy Industries written permission. The Contracted Party furthermore warrants that the Items will not be encumbered by any third-party rights.
14.2
The Contracted Party has no right of retention or right of suspension in respect of the Items.
14.3
The Contracted Party will, for the Contracted Party’s account and risk and for the benefit of Continental Candy Industries, insure the Items under normal conditions against all damage resulting from total or partial loss or damaging of the Items, regardless of the cause. This also includes all damage suffered as a consequence of a product recall. Continental Candy Industries has the right to demand inspection of the specific policy document(s), which must state Continental Candy Industries as co-insured.
14.4
Continental Candy Industries reserves all intellectual property rights (including similar rights such as know-how) to the Items. The Contracted Party acquires a strictly personal, non-transferable and nonexclusive license to use the Items for the duration of the Agreement as referred to in this article and subject to the condition subsequent of non-full compliance with all statutory and contractual obligations which Contracted Party must comply with vis-à-vis Continental Candy Industries.
14.5
The Contracted Party will return the Items to Continental Candy Industries in a good state, unless Continental Candy Industries orders differently. The Contracted Party will use the Items entirely at its own risk. Continental Candy Industries is not liable for any consequences of the use of the Items for the Contracted Party or third parties, except for intent or gross negligence on the part of Continental Candy Industries or its managerial staff. The Contracted Party will not use the Items for or in relation to any other purpose than the proper execution of the Order and will not authorize or allow any third parties to use the Items.
14.6
Items in this article also includes the Items which the Contracted Party has purchased with a view to the orders from Continental Candy Industries and has charged to Continental Candy Industries. The Contracted Party is deemed to keep these Items for Continental Candy Industries as of the date on which the Contracted Party acquired them.
Article 15 Liability, force majeure and indemnification
15.1
The Contracted Party will execute the Order entirely at its own risk. The Contracted Party will compensate all damage, both directly and indirectly and including any damage on account of loss of profits, which is suffered by Continental Candy Industries or third parties as a consequence of or in relation to the execution of the Order, irrespective of whether such damage is caused by the Contracted Party, its staff or any other persons that were engaged in the execution of the Order by the Contracted Party.
15.2
The Contracted Party is fully liable for any damage suffered by Continental Candy Industries or third parties as a result of any Defects in the Products and/or Services delivered, except in the event of a nonattributable shortcoming (“force majeure”).
15.3
Force majeure in any event does not include: lack of staff, strikes, sickness of staff, late supply of and/or unsuitable materials, raw materials or semi-finished products or services, attributable shortcomings or unlawful acts of suppliers or third parties engaged by the Contracted Party and/or liquidity and/or solvency problems on the part of the Contracted party.
15.4
The provisions of paragraph 1 and 2 of this article are considered to be a clause also for the benefit of any injured third parties as referred to in said paragraphs. The Contracted Party will indemnify Continental Candy Industries against any third-party claims. The Contracted Party will also indemnify Continental Candy Industries against vicarious tax liability.
15.5
The Contracted Party is and will remain adequately insured for statutory and professional liability. The Contracted Party undertakes – immediately after it has been held liable by Continental Candy Industries – to assign all claims in respect of payment(s) of insurance payments to Continental Candy Industries at first request.
15.6
If the Contracted Party becomes aware of a possible Defect in the Products delivered or to be delivered by the Contracted Party, which Defect could lead to a recall of the Products, the Contracted Party is obliged to immediately inform Continental Candy Industries thereof, enter into consultations with Continental Candy Industries in respect of a possible product recall and limitation of loss, and will do its utmost in this context. The costs of the product recall, which will also include all costs of or in relation to Products that are already further processed, will be fully for the account of the Contracted Party, unless explicitly agreed otherwise.
Article 16 Termination
16.1
If the Contracted Party does not properly execute the Order, Continental Candy Industries, without prejudice to its other rights, after the Contracted Party has been declared in default in writing, in which context a period of at least 7 calendar days is observed, has the right to terminate the Agreement, in part or in full, without judicial intervention, for which termination a notice suffices.
16.2
If the Contracted Party exceeds a Term in the execution of the Order, or if it cannot reasonably be assumed that the Contracted Party will execute the Order in good time, Continental Candy Industries, without prejudice to its other rights, has the right to terminate the agreement, in full or in part, through a single notice to the Contracted Party, without further notice of default or judicial intervention being required.
16.3
In the event of a (provisional) moratorium, bankruptcy, applicable debt management scheme, suspension or liquidation of the Contracted Party’s company or (in the event of a natural person) upon his death, or in the event of a legal merger of the Contracted Party, or if a substantial part of the control over the Contracted Party’s company is taken over by another party, Continental Candy Industries has the right to terminate the Agreement and any agreements directly related thereto in full or in part. In such event, Continental Candy Industries is furthermore entitled to suspend any obligations in respect of the Contracted Party under other Agreements or by any other nature, without notice of default being required.
16.4
All claims Continental Candy Industries might have or will acquire in the cases referred to in paragraphs 1, 2 and 3 against the Contracted Party will be immediately and fully due and payable.
16.5
By virtue of a termination and/or the condition subsequent becoming effective, Continental Candy Industries has the right to reclaim all payments it made from the Contracted Party. Insofar as, on termination, any performance already delivered by the Contracted Party cannot be returned but otherwise complies with the Order, the Contracted Party is entitled to compensation based on the value of the performance delivered to Continental Candy Industries, to be reasonably determined and set off against the claim that Continental Candy Industries has against the Contracted Party in respect of the shortcoming and/or termination. Insofar as return is possible, Continental Candy Industries may, at its discretion, retain the performance delivered for a compensation, or return it to the Contracted Party for the account and risk of the contracted Party, without prejudice to any exercise of the rights referred to in 12.3.
16.6
Continental Candy Industries rights, as set out in these Conditions, will not end on account of a termination within the meaning of paragraph 1, 2 or 3.
Article 17 Intellectual property.
17.1
The Contracted Party will grant Continental Candy Industries a non-exclusive license under all its intellectual property rights, if any, to the Products and/or Services, including but not limited to rights relating to patents, utility models, trademarks and know-how. By virtue of this license, Continental Candy Industries has the right to use the Products, or have them used, (including change, processing and repair of the Products) and furthermore is authorized to supply, or make the Products available to third parties, either or not as a component of other goods. The remuneration for this license is included in the price. If a further (legal) act is required under any relevant legal system for the establishment and/or execution of these rights/licensing rights, the Contracted Party will inform Continental Candy Industries thereof and will always provide all required cooperation to Continental Candy Industries at its own account and risk.
17.2
All intellectual property rights with regard to the results of the Services are vested in Continental Candy Industries. If a further (legal) act is required under any relevant legal system for the establishment and/or execution thereof, the Contracted Party will inform Continental Candy Industries thereof and will always provide all required cooperation to Continental Candy Industries at its own account and risk.
17.3
Contracted Party warrants that the Products and/or Services do not infringe any intellectual property rights of Continental Candy Industries or third parties and indemnifies Continental Candy Industries and its customers against any such infringement, including similar claims with regard to know-how, unlawful competition etc.
17.4
If proceedings have been instituted on account of infringement of such rights, or if there is possibility of proceedings being instituted, the Contracted Party will, without prejudice to Continental Candy Industries rights, including its right to terminate the Agreement, for its own account and risk:
(a) still acquire the right to continue the use of (the specific part of) the Products and the results of the Services by Continental Candy Industries;
b) or replace and/or adjust (the specific part of) the Products and/or the results of the Services;
(c)or take back the (the specific part of) the Product and/or the results of the Services, against payment of the costs, damage and interest. Adjustment and/or replacement will not entail that Continental Candy Industries will be restricted in the possibilities for use of the Products or results of the Services.
17.5
The Contracted Party undertakes, for its own account and risk, to take measures that could contribute towards preventing interruption of Continental Candy Industries business operations, and to reduce the additional costs to be incurred and/or loss to be suffered by Continental Candy Industries.
Article 18 Confidentiality
18.1
The Contracted Party, its staff and any third parties engaged by the Contracted Party must observe strict confidentiality with regard to all information pertaining to Continental Candy Industries business which it may obtain in the context of the Order and/or the Agreement, or the execution thereof, such including the nature, cause and result of the activities carried out and the prices, costs and procedures used by Continental Candy Industries.
18.2
The Contracted Party may not directly and/or indirectly provide Products and/or Services to customers of Continental Candy Industries. The Contracted Party will immediately inform Continental Candy Industries in the event that he is approached by customers of Continental Candy Industries.
18.3
In the event that the Contracted Party violates the obligations stated in this article, the Contracted Party will forfeit to Continental Candy Industries – without demand or notice of default being required – an immediately due and payable penalty of € 5,000 (in words: five thousand Euros), to be paid at once, plus a due and payable penalty of € 2,500 (in words: two thousand five hundred Euros) for each day or part-day that the violation continues, such without prejudice to the Contracted Party’s obligation to compensate all damage arising from the violation on the part of Continental Candy Industries.
Article 19 Exercise of rights of suspension, termination, setoff and avoidance by Continental Candy Industries
19.1
If Continental Candy Industries, based on the circumstances known to it at that time, reasonably believes that it may validly exercise a right of suspension, termination, setoff or avoidance, Continental Candy Industries is not obliged to pay the statutory interest, if it later emerges that it did not exercise the aforesaid right(s) in a legally valid manner.
Article 20 Applicable law, competent court
20.1
These Conditions, as well as all Orders and agreements and all disputes arising therefrom are governed by Dutch law.
20.2
Third parties will not enter any Agreement between Continental Candy Industries and the Contracted Party based on an implicit or explicit third-party clause in these Conditions. Article 6:254 (1) DCC therefore does not apply.
20.3
The United Nations Convention on Contracts for the International Sale of Goods (often referred to as the Vienna Sales Convention) does not apply, nor does any other international regulation regarding the purchase/sale of movable tangible property whose application can be excluded by contract.
20.4
If these Conditions apply to an international relationship with the Contracted Party, Continental Candy Industries will always immediately inform the Contracted Party of all provisions in these Conditions that are unenforceable in the country of the Contracted Party. Continental Candy Industries will bear the reasonable costs of any external legal investigation required for this purpose, provided that it has agreed to this in advance. The Contracted Party will, insofar as it fails to comply with the provisions of the first sentence of this paragraph, neither in nor out of court invoke any unenforceability of such provisions and will indemnify Continental Candy Industries against any damage that might arise, unless Continental Candy Industries has refused to pay the reasonable costs referred to above.
20.5
All disputes arising from or relating to an offer, Order, Agreement, these Conditions or an obligation to Continental Candy Industries will be heard exclusively by the competent court in the Netherlands in the district of Leeuwarden.
B. PROVISIONS IN CONNECTION WITH CONTRACTS FOR WORK
This chapter contains specific provisions with regard to the contracts for work to be performed by the Contractor on instructions of Continental Candy Industries. As far as they are contrary to the other provisions in these Conditions, the provisions in this chapter shall have precedence.
ARTIKEL 21 AANVANG WERKZAAMHEDEN
21.1
Without prejudice to the stipulations of Article 3, the Contractor who commences work without having received a written order without obligation to do so to from Continental Candy Industries shall do so for his own account and risk. Continental Candy Industries shall not be obliged to pay any fee and shall have the right to demand that the Contractor restore everything to its original condition.
21.2
Already before accepting the Order and/or before commencing the work, the Contractor shall acquaint himself sufficiently with the objectives of Continental Candy Industries with regard to the Work, and with the organization relevant for these objectives of Continental Candy Industries.
21.3
In the event of any (alleged) errors in or inconsistencies between any parts of the Agreement, the Contractor shall first consult Continental Candy Industries before starting to perform it.
Article 22 Failure to Notify and Failure to Award
22.1
Save in the event that it would be established that a mandatory notification of intended offers or bids to the authority regulating price caps or other authority with which the Contractor is affiliated is not contrary to competition law, the Contractor shall not make such notification.
22.2
If the Work is not awarded, the drawings and documents relating thereto or provided by or on behalf of Continental Candy Industries shall be returned to Continental Candy Industries promptly after the notice that it was not awarded.
Article 23 Execution Schedule; Reporting
23.1
If Continental Candy Industries so requires, the Contractor shall present it with an execution schedule, stating among other things the times of commencement and completion of the consecutive parts of the Work and the staffing. After approval by Continental Candy Industries, this execution schedule shall form part of the Agreement.
23.2
The Contractor shall report to Continental Candy Industries periodically and according to Continental Candy Industries wishes. In these reports, Continental Candy Industries shall be kept informed of the state and progress of the Work and all related aspects.
ARTICLE 24 SUPERVISION AND CONTROL
24.1
The Contractor shall be responsible for the day-to-day management and supervision of the execution of the Work. The number of officials having competence and expertise on the Work whom the Contractor makes available for this purpose shall be in conformity with the scope and complexity of the Work, the Specification, as well as with the other reasonable requirements Continental Candy Industries sets thereon.
24.2
Continental Candy Industries may require the Contractor to replace any persons involved in the execution of the Work whenever Continental Candy Industries deems this reasonably necessary for whatever reason.
24.3
Continental Candy Industries shall have the right to exercise or have exercised control over the compliance with the Agreement. The control by Continental Candy Industries shall not relieve the Contractor in full or in part of any responsibility and/or liability, and the exercise of said control shall not cause the complaint notification periods as envisaged in Sections 6:89 and 7:23 of the Dutch Civil Code to begin to run already.
Article 25 Delivery
25.1
Unless the Agreement provides otherwise, the delivery (“Delivery”) shall be deemed to have taken place when Continental Candy Industries has agreed to the executed Work. The agreement of Continental Candy Industries can only be made apparent by written proof of Delivery, unless Continental Candy Industries declares explicitly and in writing that it will vary therefrom with regard to a specific Agreement or kind of Agreements.
25.2
The Work shall remain at the risk of the Contractor until the time of Delivery. Until the time of Delivery the Contractor shall be obliged to bear the costs of replacement or repair in the event of loss of or damage to the Work by whatever cause.
25.3
In the event that a full performance test or end test has been agreed in the Agreement, the Delivery shall have taken place at the time when Continental Candy Industries declares to the Contractor in writing that the requirements set have been fulfilled.
25.4
Continental Candy Industries shall have the right to use or have used the Work before it is completed, or any completed or uncompleted part thereof. If this use requires more of the Contractor than can reasonably be required of him, the consequences thereof shall be reasonably arranged between the parties. The Work or any part thereof shall not be considered to have been delivered as a result of the use as meant in this Article.
Article 26 Maintenance Obligations
26.1
The Contractor shall have a maintenance obligation towards Continental Candy Industries.This maintenance obligation implies that the Contractor is obliged at his expense and risk, during a term of one year from the day of Delivery of the work, to repair any imperfections and make any necessary improvements, repairs or renewals he is notified of, or to perform any additional work necessary as a result of such imperfections, whilst supplementing materials.
26.2
The Contractor shall be subject to a maintenance obligation identical to that described in Article 26.1 for such imperfections as could not reasonably be discovered by Continental Candy Industries within the term mentioned in Article 26.1, and which are notified to the Contractor by Continental Candy Industries within a reasonable time after their discovery.
Article 27 Materials
27.1
Unless the Agreement provides otherwise, all materials necessary shall be purchased by the Contractor and be transported to the place of destination at his expense. By the mere fact of the supply of the materials to the premises of Continental Candy Industries, theContractor transfers the ownership of these materials to Continental Candy Industries.
27.2
In the event that the Agreement provides in derogation of the provisions that materials shall not be purchased by the Contractor but by Continental Candy Industries, the Contractor shall be entitled to have such quantities made available to him as are reasonably necessary for the performance of the Work. The Contractor guarantees that the materials made available to him by Continental Candy Industries, which will remain the property of Continental Candy Industries, will be used as economically as possible. The Contractor shall place any remainders of materials made available by Continental Candy Industries at the disposal of Continental Candy Industries again.
27.3
In the event that during or after execution of the Work the quantity or quality of any materials made available by Continental Candy Industries appears to be insufficient for the execution of the Work, this shall be notified to Continental Candy Industries in good time. In the event that the Contractor fails to make such notification, any stagnation in the execution of the Work shall be for the account of the Contractor, and such stagnation shall not be regarded as a non-imputable failure for the Contractor. In the event that a shortfall in materials is the result of negligent use thereof by the Contractor, his staff or any third parties engaged by him, the costs of supplementation thereof shall be payable by the Contractor.
27.4
Any materials to be supplied by the Contractor shall meet the reasonably requirements to be sett on them by Continental Candy Industries and shall conform to the Specification. Any inspection by or on behalf of Continental Candy Industries of materials to be supplied by the Contractor shall not relieve the Contractor of any responsibility and/or liability arising from the use of such materials for the Work.
27.5
Without prejudice to the provisions set out in the other paragraphs of this Article, the materials supplied by the Contractor as well as those made available to him by Continental Candy Industries, regardless of whether the materials are already incorporated in the Work or not, shall be for the risk of the Contractor until the Delivery of the Work. In the event of loss of or damage to such materials by whatever cause, the Contractor shall be obliged to pay the costs of replacement or repair.
Article 28 Tools and Materials
28.1
Unless the Agreement provides otherwise, the Contractor shall provide all the tools and materials necessary for the Work. In the event that the Agreement provides that Continental Candy Industries makes tools available to the Contractor, such tools shall be applied for by the Contractor to Continental Candy Industries in good time in accordance with the rules to be set by Continental Candy Industries, for the period of time agreed, and shall be given on loan by Continental Candy Industries to the Contractor. Save in the event of an earlier termination of the loan, which Continental Candy Industries is free to terminate at all times, the tools shall be returned to Continental Candy Industries upon Delivery of the work. The Contractor is deemed to have received the tools made available to him by Continental Candy Industries in good condition, unless the Contractor notifies any Defects discovered in their prompt control to Continental Candy Industries in writing. The return shall take place in accordance with the rules to be set by Continental Candy Industries. In the event of interim termination of the loan, Continental Candy Industries shall not owe any damages or additional charges in whatever form.
28.2
All tools and materials of the Contractor can only be used in conformity with the applicable statutory provisions, and in conformity with any reasonable demands to be set in addition thereto by Continental Candy Industries. In the event that such requirements are not fulfilled, or in cases of doubt, Continental Candy Industries shall have the right to prohibit the use of such tools and materials and the Contractor shall be obliged to remove the relevant tool or material and to replace it as soon as possible by a tool or material that does fulfil these requirements. Any stagnation in the execution of the work as a result thereof shall be for the account of the Contractor. The inspection of tools and materials by Continental Candy Industries shall not relieve the Contractor of any responsibility and/or liability arising from the use thereof.
28.3
Save in the event of intent or gross negligence on the part of Continental Candy Industries or its executive staff, Continental Candy Industries shall not be liable for any defects to the materials or tools made available by it, or for any damage arising from the use made thereof by the Contractor.
Article 29 Working Conditions and Safety
29.1
The Contractor shall be responsible for the working conditions and safety at work. The Contractor shall comply with all applicable statutory prescriptions, prescriptions from the Dutch Health and Safety Inspectorate (Arbeidsinspectie), and the local safety prescriptions applicable.
29.2
The Contractor shall conduct a safety inspection at work regularly, depending on the project. The results of such inspection shall be submitted to Continental Candy Industries in a report.
29.3
The Contractor shall participate in safety discussions concerning the Work regularly, depending on the project.
29.4
Employees of the Contractor, employees of his subcontractors or any third parties otherwise engaged by him, whose conduct is unsafe in the reasonable judgment of Continental Candy Industries, shall be removed from the Work on first notice of Continental Candy Industries. The Contractor shall ensure their prompt replacement.
Article 30 Laws and Regulations
30.1
In the event that the Contractor is a subcontractor of Continental Candy Industries, he is deemed to be familiar with all statutory and other – including contractual – prescriptions, conditions and provisions, which Continental Candy Industries must comply with and observe under the contract for work concluded by him for the execution of the Work of which the Work described in the Agreement is a part.
30.2
The Contractor, his staff and the third parties engaged by him shall be obliged to comply with and observe all prescriptions, conditions and provisions, including those referred to above, as far as they relate to the Work to be executed by him.
30.3
The Contractor undertakes towards Continental Candy Industries strictly to fulfil his statutory obligation to pay social security contributions and wage taxes in connection with the Work charged to him, and furthermore to comply strictly with any applicable provisions of a CAO (collective labour agreement).
Article 31 Vicarious Tax Liability
31.1
The Contractor shall keep his accounts in such manner that it is possible to determine the actual wage costs (prefab, installation, overhead and any outsourcings to which the Dutch Wages and Salaries Tax and National Insurance Contributions Liability of Subcontractors Act applies). Continental Candy Industries shall have the right to check these accounts or have them checked at all times.
31.2
In his invoice the Contractor shall state the actual wage costs as mentioned in Article 33.1.Forty percent of this actual payroll cost shall be transferred by Continental Candy Industries to the blocked account of the Contractor. This amount paid to the blocked account is destined for wage taxes and social security charges.
31.3
Upon request the Contractor shall provide Continental Candy Industries with the original of a recent Declaration of Payment History (not older than three months) from the sector board and the Dutch Tax and Customs Administration, which states that payment of taxes and social security contributions has been made with regard to the staff of the Contractor and to third parties engaged by the Contractor in connection with the Work (or its execution).
Article 32 Right to Intervene In the Work
32.1
In the event that in the judgment of Continental Candy Industries the Work proceeds such that the term set in the Agreement for the creation of the Work or parts of the Work will be exceeded according to reasonable expectation, or in the event that the Contractor, in the reasonable judgment of Continental Candy Industries, is not executing or has not executed the Work in accordance with the provisions of the Agreement and/or requirements of good workmanship, Continental Candy Industries shall notify the Contractor thereof in writing.
32.2
In the event that the Contractor, within two weeks from receipt of a notice as referred to in Article 32.1, fails to take such measures – whilst notifying Continental Candy Industries thereof – as will ensure, in the reasonable judgment of Continental Candy Industries, that the time lag will be made up within a short time or that the above-mentioned provisions and/or requirements will be fulfilled, the Contractor shall be deemed to be in default.
32.3
In the event that the Contractor is in default within the meaning of Article 32.2, Continental Candy Industries shall have the right, without any further notice of default or judicial intervention being required, to intervene in the Work in order to expedite and/or improve the Work, either by its own staff or by third parties on its instructions. Continental Candy Industries shall promptly notify the Contractor of such intervention. In that case, the Contractor shall lend Continental Candy Industries and the third parties involved by it in the Work all assistance desired by it, including the right to use the materials, tools, equipment etc. of the Contractor if desired. The costs of such intervention, which shall be payable on demand, shall be for the account of the Contractor. The costs shall include a reasonable compensation for overhead and supervision by Continental Candy Industries.
Article 33 Dissolution of the Agreement
33.1
In the case referred to in Article 31.2, Continental Candy Industries shall also have the right to dissolve the Agreement, at its discretion in whole or in part, without any notice of default being required for that purpose. Such dissolution may also take place after Continental Candy Industries has initially attempted to expedite and/or improve the Work by intervening in the Work in the manner described in Article 31.3. The above-mentioned dissolution by Continental Candy Industries shall be effected in writing, which shall include by e‑mail, SMS or fax.
Article 34 Delegation of the Work Upon Dissolution of the Agreement
34.1
In the event that the Agreement is dissolved for a reason specified in Article 32 or Article15.2, Continental Candy Industries shall compensate the Contractor for the costs he has incurred until the time of dissolution on a cost price basis, as far as such costs arise from the reasonable execution of the Work, provided that the part of the Work executed until then was carried out such that – proceeding form the part carried out – the Work may be completed in a technically and economically sound manner, whether or not after alteration, in accordance with the provisions of the Agreement. In the event that a contract sum was stipulated in the Agreement, the costs thus determined shall not exceed a part of the contract sum calculated proportionally. When determining the compensation, any reasonable costs of alteration as referred to above shall be deducted from it. Continental Candy Industries shall have the right to make a preliminary deduction of the above- mentioned costs of alteration according to an estimated amount, in order to be set off later against the actual costs of alteration.
34.2
In the case mentioned in Article 34.1, Continental Candy Industries shall have the right to complete the Work or to have it completed by third parties on its instructions. In that case, the Contractor shall lend Continental Candy Industries and the third parties involved by it in the Work all assistance desired by Continental Candy Industries, including the right to use the materials, tools, equipment etc. of the Contractor if desired. As far as the costs arising from such assistance are not included in the compensation referred to in Article 34.1, the cost price thereof shall be paid to the Contractor. As far as the payments already made by Continental Candy Industries to the Contractor under the Agreement exceed the compensation described in this Article, the surplus shall become payable on demand upon the dissolution of the Agreement, and shall be paid back by the Contractor to Continental Candy Industries.
Article 35 Refusal of the Work Upon Dissolution of the Agreement
35.1
In the event that the Agreement is terminated for a reason specified in Article 32 or Article15.2, provided that the Work executed until then was carried out such that – proceeding from the part carried out – the Work cannot reasonably be considered capable of completing in a technically and economically sound manner, whether or not afteralteration, in accordance with the provisions of the Agreement, Continental Candy Industries may refuse the Work and may order the Contractor to remove the Work as soon as possible at the expense of the Contractor.
35.2
In the event of a refusal as described in Article 35.1, Continental Candy Industries shall not be obliged to pay any compensation, and any payments already made by Continental Candy Industries to the Contractor under the Agreement shall become payable on demand andshall be paid back by the Contractor to Continental Candy Industries.
Article 36 Payment
36.1
Unless otherwise agreed and without prejudice to the other stipulations of Article 6, the contract sum shall be invoiced as follows:
(a) 5% upon the conclusion of the Agreement;
(b) 20% upon the commencement of the Work;
(c) 75% upon the Delivery of the Work.