General 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;

© 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;
© 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

4.1

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.

Article 7 Outsourcing

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;
© 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.

Article 11 Delivery carriage paid

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;
© 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.

Article 21 Commencement of Work

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, the
Contractor 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 Article
15.2, 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 Article
15.2, 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 after
alte­ra­ti­on, 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 and
shall 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;
© 75% upon the Delivery of the Work.