Terms and conditions

GENERAL TERMS AND CONDITIONS FOR SUPPLIES BY: BonaVita, established and domiciled in Spain: Av/Pais Valenciano 43, 03580 Alfaz del Pi (Alicante), hereinafter to be referred to as: User

Article 1. Definitions

1. In these general terms and conditions, the following definitions apply: User: the user of the general terms and conditions (BonaVita); Buyer: non-consumer, a client acting in the capacity of conducting a business or profession.

Article 2. Applicability of these conditions

1. These terms and conditions shall apply to every offer, quotation and every agreement between User and Buyer to which User has declared these terms and conditions applicable, insofar as parties have not explicitly deviated from these terms and conditions in writing.

2. The present terms and conditions also apply to all agreements with User of which the execution requires the involvement of third parties.

3. Buyer's general terms and conditions are expressly rejected.

4. The Buyer with whom User has once concluded an agreement under these terms and conditions shall accept the applicability of these terms and conditions to all subsequent agreements.

5. If one or more conditions should prove to be or become null and void, this shall not affect the validity of the remaining conditions.

6. If at any time User does not invoke these general terms and conditions, this shall not mean that User would lose the right to invoke these general terms and conditions.

Article 3. Quotations and realisation

1. Quotations made by User are without obligation, unless explicitly stated otherwise and do not oblige User to deliver the relevant goods and/or services to Buyer. Quotations – whether without obligation or not – will in any case expire no later than 14 days after the date of the quotation.

2. Terms and conditions deviating from these stipulations can only be invoked by Buyer if these deviating stipulations have been explicitly accepted by User in writing in a separate agreement. In case of conflict between a separate agreement and these terms and conditions, the provisions of the separate agreement shall prevail over the articles of these terms and conditions.

3. Delivery times and other terms of performance stated in User's quotations are approximate and informative only; exceeding them shall therefore not entitle the (potential) Buyer to compensation or dissolution.

4. Prices quoted by User are in euros, unless stated otherwise, based on performance during normal working hours and are exclusive of transport, packaging, delivery and installation costs, VAT and other government levies.

5. In the case of a composite price offer, there shall be no obligation on the part of User to deliver part of the goods included in the offer for a corresponding part of the stated price.

6. Quotations do not automatically apply to repeat orders.

7. The prices stated in a quotation are exclusive of VAT and are ex works, unless otherwise indicated in writing.

8. The agreement between User and Buyer shall not be concluded until User has confirmed an order to Buyer in writing or until User has commenced the actual execution of the order within four weeks after the order was placed. Agreements entered into with the intervention of commercial agents, commercial travellers and/or other persons shall only be binding on User after these agreements have been confirmed in writing by User, or if User has actually commenced the execution thereof.

9. Changes with regard to an agreement shall only be effective if they have been agreed in writing between User and Buyer.

10. In the case of sales from warehouse stock, the invoice may replace the written confirmation.

Article 4. Obligation to provide information

1. At User's first request thereto, Buyer shall be obliged to inform User of all information relevant to the agreement, such as, but not limited to, the correct VAT identification number and the name under which Buyer is registered with the relevant tax authorities.

Article 5. Samples, models and examples

2. If User has shown or provided a model, sample or example, this shall be assumed to have been shown or provided only by way of indication: the qualities of the goods to be delivered may deviate from the sample, model or example, unless it was explicitly stated that the goods would be delivered in accordance with the sample, model or example shown or provided.

Article 6. Delivery

1. Unless explicitly agreed otherwise in writing, User's warehouse (in Oudkarspel, Netherlands) is the place of delivery. If one of the 'Incoterms' has been agreed as the delivery condition, the Incoterms in force at the time of the conclusion of the agreement shall apply.

2. If the goods were not sold carriage paid, the risk for the goods during transport shall be borne by Buyer from the moment that the goods have left User's company/warehouse. User shall be at liberty to choose freight/loading, means of transport and forwarder/carrier, unless otherwise agreed in writing.

3. Buyer is obliged to take delivery of the purchased goods at the moment they are delivered to him or at the moment they are made available to him in accordance with the agreement. Upon delivery, the risk is transferred to Buyer, except if and in so far as the risk has already been transferred at an earlier point in time on the basis of the agreement or the law.

4. If Buyer refuses to take delivery or fails to provide information or instructions necessary for delivery, the goods will be stored at Buyer's expense and risk. In that case, Buyer shall also owe all additional costs, including in any case storage costs.

5. User is entitled to engage third parties to fulfil his obligations.

Article 7. Delivery time

1. The delivery time specified by User shall never commence until he has received all required information.

2. Delivery times stated by User are always approximate and are never strict deadlines.

3. In the event of late delivery, Buyer shall therefore give User notice of default and set User a reasonable period in which to still fulfil his obligations. Any notice of default by Buyer must be given in writing.

Article 8. Partial deliveries

1. User is permitted to deliver sold goods in parts.

2. If the goods are delivered in parts, User shall be entitled to invoice each part separately.

Article 9. Technical requirements etc.

1. If the goods to be delivered in Spain are to be used outside Spain, User is not responsible for ensuring that the goods to be delivered comply with the technical requirements, standards and/or regulations set by the laws or regulations of the country in which the goods are to be used. This does not apply if, at the time of concluding the agreement, the use abroad was agreed upon and Buyer has submitted all the necessary data and specifications.

2. If Buyer imposes technical requirements on the delivered goods that deviate from those normally applicable in Spain, User shall only be bound by them if the parties have expressly agreed thereto.

 

Article 10. Dissolution of the contract

User is entitled to suspend the agreement or – without notice of default or judicial intervention – to dissolve the agreement in whole or in part with immediate effect if:

– after the agreement has been concluded, User becomes aware of circumstances which give User good reason to fear that Buyer will not comply with his obligations and/or

– at the time the agreement was concluded, User asked Buyer to provide security for the fulfilment of the agreement and this security is not provided or is insufficient despite an injunction and/or

– circumstances occur with regard to persons and/or materials who or which User uses or tends to use in the execution of the agreement, which are of such a nature that the execution of the agreement becomes impossible or so problematic and/or disproportionately expensive that compliance with the agreement can no longer reasonably be demanded and/or

– Buyer loses the right to dispose freely of his assets, for example through liquidation, (application for) a suspension of payments, bankruptcy or seizure and/or

– other circumstances arise which are of such a nature that User cannot reasonably be expected to maintain the agreement.

If User exercises his right to dissolve the agreement, User's claims against Buyer will become immediately due and payable. User's right to claim damages remains unaffected thereby.

Article 11. Right of suspension

1. If and as long as Buyer does not, does not properly or does not timely comply with any obligation arising for him from the agreement concluded with User or a thereto related agreement, User shall be entitled to suspend the fulfilment of his obligations under an agreement.

2. Buyer is not entitled to suspend the fulfilment of his obligations under an agreement.

Article 12a. Retention of title for Buyers established in Spain

1. All goods delivered by User shall remain the property of User until Buyer has fulfilled all obligations arising from all agreements concluded with User.

2. Goods delivered by User, which by virtue of paragraph 1 are subject to retention of title, may only be resold within the framework of normal business operations, but may never be used as a means of payment.

3. If Buyer forms new goods out of the goods delivered by User which are subject to retention of title, Buyer will act on User's instructions during such formation and Buyer shall keep the item or items for User. Buyer shall only become the owner of the goods at the time when the retention of title lapses as a result of all User's claims having been settled.

4. Buyer is not entitled to pledge or otherwise encumber the goods falling under the retention of title.

5. In all cases in which User wishes to exercise his rights regarding retention of title, Buyer unconditionally and irrevocably grants permission in advance to User, or to a third party to be designated by User, to enter all places where User's property is then located and to take those goods with him.

6. If third parties seize the goods delivered subject to retention of title or wish to establish or assert rights to them, Buyer shall be obliged to inform User of this immediately, both orally and in writing.

7. Buyer undertakes to insure the goods delivered subject to retention of title and to keep them insured against fire, explosion and water damage, as well as against theft, and to make the insurance policy concerned available for inspection at first request. User shall be entitled to payments for damage to items delivered by User which are still subject to retention of title. Buyer shall provide all cooperation necessary for this purpose.

Article 12b. Retention of title for Buyers established outside Spain

1. For Buyers established in Germany, the parties shall separately agree to a retention of title.

 

Article 13. Defects; complaint periods

1. Buyer shall inspect the purchased goods (or have them inspected) immediately upon delivery (and at the latest 24 hours thereafter). When doing so, Buyer shall check whether the goods delivered comply with the agreement, namely: whether the correct goods have been delivered; whether the goods delivered correspond in terms of quantity (for example, the quantity and the number) with what has been agreed; whether the goods delivered comply with the agreed quality requirements or, in the absence of these, with the requirements that may be set for normal use and/or commercial purposes.

2. Buyer shall notify User of any defects immediately (and at the latest within 8 working days after delivery). Notification shall be made in writing, stating a description of the defect that is as accurate as possible. User shall be given the opportunity of investigating the complaint on the spot.

3. If Buyer does not examine the delivered goods immediately and/or does not notify User of the detected defects immediately and/or does not give User the opportunity of investigating the complaint, Buyer shall lose his rights with regard to the detected defects.

4. If Buyer has any rights due to defects, User can choose between repair, replacement or payment of alternative compensation. In the event of replacement or payment of alternative compensation, Buyer shall return the defective goods to User, unless User expressly waives this right.

5. Even if Buyer complains in time, his obligation to pay and take delivery of the orders made shall remain in force.

6. Costs due to unjustified complaints or late complaints by Buyer shall be at the expense of Buyer.

7. Goods can only be returned to User after prior written consent.

Article 14. Warranty

1. User only guarantees that the goods delivered by him have the properties required for normal use thereof, as well as the properties required for any special use in the event that this special use is expressly stated in the written agreement with User.

2. The warranty as stipulated in Article 14.1 does not apply if the goods to which the warranty relates:

– have or are not used in accordance with their order or are or have been injudiciously used, and/or

– operating instructions have not been observed and/or

– improper repairs have been carried out and/or

– changes have been made and/or (serial) numbers or stamps have been damaged or removed.

3. If warranty is provided by User, the warranty period shall be equal to the number of months that the producer or User's supplier has provided warranty, unless expressly agreed otherwise in writing, but never longer than the statutory guarantee period.

4. If the warranty provided by User relates to goods and/or services located outside the Netherlands, User shall only be liable for the costs of repair or replacement up to a maximum cost which would have been incurred had they been carried out in the Netherlands.

5. If Buyer invokes a warranty for certain goods delivered by User, these can only be returned to User by Buyer after User's prior written permission.

6. If goods are returned with due observance of Article 14.5, they must be accompanied by a copy of the original invoice issued by User to Buyer, together with any accompanying, fully specified warranty certificate and a clear description of the complaint.

Article 15. Price/price increase

1. Unless explicitly stated otherwise, the prices indicated by User shall apply: in euros (€), exclusive of VAT, on the basis of User's minimum quantities, exclusive of transport costs and ex works.

2. User shall be entitled to increase the price if at least three months have elapsed between the date of the agreement and the date of delivery and price changes have occurred with regard to raw materials, currencies and/or wages or other circumstances, without Buyer being entitled to dissolve the agreement for that reason.

3. If the price increase amounts to more than 10% of the agreed price in the agreement, Buyer has the right to dissolve the agreement by written notice.

Article 16. Security

1. User is entitled to demand sufficient security from Buyer for the fulfilment of any payment obligation, including the payment of advances from Buyer, before he delivers or continues with further deliveries or continues to fulfil any other obligation under the Agreement.

2. In the event of reasonable doubt on the part of User as to Buyer's ability to pay, User shall be entitled to postpone the delivery.

Article 17. Packaging

1. Buyer is obliged to return loaned packaging at his own expense to User's address within 14 (fourteen) days of delivery, empty and undamaged. If Buyer fails to fulfil his obligations with regard to packaging, all costs resulting from this shall be borne by him. Such costs include the costs resulting from late return and the costs of replacement, repair or cleaning.

2. If Buyer, after a reminder, does not return the loaned packaging within the period stated therein, User shall be entitled to replace it and to charge the costs thereof, provided that User has announced these steps in his reminder.

Article 18. Payment

1. Unless otherwise agreed, payment by Buyer, either net cash on delivery or by means of a deposit or transfer to a bank or giro account designated by User in the currency in which the invoice was made, such at User's discretion, shall be made within 14 (fourteen) days of the invoice date.

2. After expiration of 14 (fourteen) days after the date of invoice, Buyer is in default by operation of law; from the moment Buyer is in default, he shall owe an interest of 1% per month on the amount due and payable, unless the statutory interest rate is higher, in which case the statutory interest rate shall apply. The interest shall be calculated from the moment Buyer is in default until full payment of the amount due.

3. In the event of liquidation, bankruptcy or suspension of payments or any other loss of Buyer's free power of disposal, User's claims and Buyer's obligations towards User shall be immediately due and payable.

4. Payment shall be made without discount. Buyer shall never be entitled to set-off or suspension. Objections to the amount of the invoice do not suspend the payment obligation.

5. Payments made by Buyer shall always be applied in the first place to settle all interest and costs due and in the second place to settle the oldest outstanding invoices due and payable.

6. User is at all times entitled to make use of his right of set-off.

Article 19. Collection costs

1. If Buyer is in default with regard to the fulfilment of one or more of his obligations, all judicial and extrajudicial costs incurred in order to obtain payment shall be borne by Buyer. In any case, Buyer shall owe:

15% for the first € 3,000.00, 10% for the excess up to € 6,000.00, 8% for the excess up to € 15,000.00, 5% for the excess up to € 60,000.00 and 3% for any further excess.

2. If User demonstrates that he has incurred higher costs which were reasonably necessary, these shall also qualify for reimbursement.

Article 20. Liability

User's legal liability is limited as follows:

1. User shall never be liable for indirect damage, such as loss of profit, missed savings and/or business and damage due to business stagnation.

2. User shall never be liable for any damage that arises or has arisen as a result of Buyer having provided incorrect or incomplete information.

3. User's liability shall also be limited to the amount of the payment to be made in a given case by User's insurer.

4. If in any case the insurance does not provide cover or does not pay out, and User is liable, User's liability shall be limited to the invoice value of the transaction, or at any rate the invoice value of that part of the transaction to which the liability relates.

5. The limitations of liability in this article shall also apply to damage caused by User or his subordinates by gross negligence or intentionally, to the extent permitted by law.

6. The limitations of liability in this article shall also apply to claims that Buyer bases on other grounds, for example on the basis of an unlawful act.

7. If Buyer resells the goods supplied by User, he is obliged to exclude User's possible liability in his purchase agreements (e.g. due to product liability). If Buyer fails to do so, he shall owe User compensation for any damage resulting therefrom.

Article 21. Force majeure

1. In these terms and conditions, force majeure shall, in addition to the provisions of the law and jurisprudence in this respect, be understood to mean all external causes, foreseen or unforeseen, beyond User's control, which prevent User from fulfilling his obligations, including strikes in User's company or third party companies.

2. In the event of force majeure, User's delivery and other obligations will be suspended. If the period in which fulfilment of the obligations by User is not possible due to force majeure lasting longer than 2 months, both parties shall be entitled to dissolve the agreement, without there being any obligation in that case to pay compensation.

3. If at the commencement of the force majeure User has already partially fulfilled his obligations, or can only partially fulfil his obligations, he shall be entitled to invoice the part already delivered or the part that can be delivered separately and Buyer shall be obliged to pay this invoice as if it were a separate contract.

Article 22. Period of limitation

1. Contrary to the statutory periods of limitation, the period of limitation is one year on both sides.

Article 23. Proof

1. In order to determine the scope of Buyer's payment obligations, User's administrative data shall be decisive, unless Buyer provides evidence to the contrary in accordance with objective criteria.

2. The quantities, dimensions and weights stated on the invoice or consignment note shall be deemed correct between User and Buyer, unless Buyer provides proof to the contrary in accordance with objective criteria.

Article 24. Settlement of disputes / applicable law

1. The court with jurisdiction in User's place of business shall have exclusive jurisdiction to hear disputes. Nevertheless, User has the right to summon the other party to appear before the competent court according to the law.

2. The law of the Netherlands shall apply to every agreement between User and Buyer. The Vienna Convention on Contracts for the International Sale of Goods (CISG) is expressly excluded.

Article 25. Amendment and location of the terms and conditions

1. The version in force at the time of the conclusion of the agreement shall always apply.

Article 26. Other provisions

1. In the event of obscurities or discrepancies, the English translation shall take precedence over other translations. This shall not apply to any additional provisions regarding the retention of title provisions in the respective translations.