Art. 1. - Definitions
1. Garlic Solutions" is understood to refer to the private company with limited liability Garlic Solutions B.V., including its legal successors under general or special title, as well as any third parties engaged by it.
2. The term "buyer" shall be understood to mean the natural or legal person who is, was, or wishes to become a client of Garlic Solutions.
3. These general conditions apply to all offers, sales and deliveries of goods and services by Garlic Solutions. If Garlic Solutions does not always require or has not required strict compliance with these conditions, no (implicit) waiver can be derived from this. Deviating provisions may only be agreed upon in writing.
Art. 2. - Offers/prices
1. All offers and quotations made by Garlic Solutions are without obligation, even if an offer or quotation includes a response time. Said amounts are expressed in Euros, unless indicated otherwise.
2. If the buyer instructs Garlic Solutions to transport the ordered goods within 8 hours of the order being placed ("rush order"), the buyer shall owe € 150.00 to Garlic Solutions in addition to the charged or agreed price.
3. All prices stated are exclusive of VAT and additional costs, such as transport, quality control and any levies, unless agreed otherwise.
4. If the purchaser acts as agent, representative or as an intermediary on behalf of a third party that will actually purchase the products or services from Garlic Solutions, the purchaser is jointly and severally liable for compliance with the agreement.
5. All prices charged by Garlic Solutions may be indexed on an annual basis. Garlic Solutions also has the right to adjust each price in a fair manner, if its costs, including but not limited to personnel, raw materials or transport costs, have increased significantly since the price was determined.
6. If the purchaser cancels an agreement concluded between a professional purchaser (not being a consumer) and Garlic Solutions, the purchaser shall immediately owe a cancellation fee of 25% of the agreed sales price excluding VAT. This cancellation fee is not subject to judicial moderation and shall be forfeited in addition to Garlic Solutions' right to claim its actual damages, such as the agreed sales price.
7. If a model, example, (test) object, sample, picture, report, brochure or similar item is provided by Garlic Solutions to the purchaser as an indication of the actual goods to be delivered, it is assumed that this has been provided only as a general indication, unless Garlic Solutions has explicitly indicated that a certain quality of such an item may be considered guaranteed. Garlic Solutions is not obliged to provide the buyer with test reports or test data of its products. Garlic Solutions has the right to charge costs for the goods and information referred to in this article.
Art. 3. - Delivery
1. Delivery shall be made from the Garlic Solutions office location in the Netherlands ("ex works" as referred to in the Incoterms 2020), unless agreed otherwise. Upon delivery, the risk of the products concerned is transferred to the buyer.
2. The purchaser and Garlic Solutions shall agree on one or more delivery dates. Garlic Solutions shall endeavour to adhere to these dates as far as possible, but they are never final, nor is Garlic Solutions liable for any damage suffered by the purchaser if delivery is made on a date other than the agreed date. Should the buyer nevertheless have complaints about the delivery date(s), the complaint period referred to in Article 7 shall apply without prejudice.
3. If the purchaser does not take delivery of the products on the agreed date or if delivery is impeded due to circumstances for which the purchaser is responsible, all resulting consequences, which explicitly include additional transport and storage costs, shall be for the risk of the purchaser.
4. If Garlic Solutions has made materials available for packaging and transport for more than one use (e.g. pallets, boxes, crates, containers, etc.) (or has had such materials made available by a third party, whether or not for payment of a deposit), the purchaser is obliged to return these goods at his own expense to an address specified by Garlic Solutions, failing which the purchaser shall be liable to pay Garlic Solutions compensation for damages.
5. Garlic Solutions is authorised to deliver and invoice the buyer for (batches of) goods purchased by the buyer in parts. Garlic Solutions is entitled to suspend the execution of a part until the buyer has inspected and approved in writing the previous part. Shortcomings in a partial delivery alleged by the buyer do not give the right to suspend payment or acceptance of other partial deliveries.
6. Garlic Solutions has the right to have all or part of the work performed by third parties.
7. The Buyer shall ensure that all information, which Garlic Solutions indicates to be necessary or which the Buyer should reasonably understand to be necessary for the execution of the agreement, is provided to Garlic Solutions in a timely manner. If the information required for the execution of the contract is not provided to Garlic Solutions in time, Garlic Solutions has the right to suspend the execution of the contract and / or charge the buyer for the additional costs arising from the delay at the usual rates. The execution period shall not begin until after the buyer has provided Garlic Solutions with the data.
8. If, during the execution of the agreement, it appears that for a proper execution it is necessary to modify or supplement it, the parties will agree on a timely adjustment of the agreement. If the agreement is amended, whether or not on the instruction of the buyer or of the competent authorities, the originally agreed nature, scope, content, price or term of the performance may be affected. The buyer shall accept the possibility of such an interim change to the agreement in advance.
Art. 4. - Payment
1. Garlic Solutions has the right at all times to request advance payment from the purchaser and may suspend delivery under all circumstances until the advance payment concerned has been received in the specified account of Garlic Solutions.
2. Payment of invoices should be made within thirty days of the invoice date. The buyer waives any right to set off his payment obligation to (or in connection with any (alleged) claim of the buyer against) Garlic Solutions.
3. If the buyer fails to meet his payment obligation in time, he shall be in default by operation of law. When the buyer is in default, any other claims of Garlic Solutions on the buyer are immediately due and payable. After the default commences, Garlic Solutions is entitled to charge 1.5% interest per month from the date the purchaser is in default until full payment is made. Part of a month shall be considered to be a whole month.
4. The buyer is obliged to fully reimburse all judicial and extrajudicial costs incurred by Garlic Solutions due to the buyer's failure to comply with the agreement, explicitly including legal fees.
5. If a prejudgment or executory attachment is levied on the buyer by Garlic Solutions, Garlic Solutions is entitled to charge € 250.00 ex VAT as an immediately payable fee for the costs of handling the attachment to the buyer.
6. The obligations of the buyer shall become immediately due and payable if the buyer is declared bankrupt, or applies for a provisional suspension of payments, or (if the buyer is a natural person) is admitted to the WSNP, or loses the authority to dispose of his assets or parts thereof due to attachment, or is placed under guardianship or in some other way, unless the guardian or custodian acknowledges the obligations arising from the agreement as estate debt.
7. The buyer is not allowed to encumber any (partial) claim(s) on Garlic Solutions with a security right, to transfer it to third parties or to burden it in a similar manner. This provision is intended to have a effect on the law of property as referred to in Article 3:83 paragraph 2 of the Dutch Civil Code.
8. In accordance with the provisions of Article 2:346 paragraph 1 sub e of the Dutch Civil Code, Garlic Solutions is at all times authorised to request an inquiry regarding the buyer (and the group to which he belongs).
Art. 5 - Termination and force majeure
1. Garlic Solutions is entitled to terminate the agreement with the buyer without giving any reason, without being liable for any damage suffered by the buyer. Partial performances already delivered shall be reimbursed by the buyer to Garlic Solutions in proportion to the extent to which the performance was carried out in relation to the entire performance.
2. In the execution of the agreement, the (non-fatal) delivery date(s) referred to in Article 3 paragraph 2 shall be extended by the period during which Garlic Solutions is unable to comply with its obligations due to force majeure.
3. Force majeure shall exist on the part of Garlic Solutions if, after the conclusion of the agreement, Garlic Solutions is prevented from complying with its obligations under the agreement or the preparations thereof due to partial or total failure, war, danger of war, civil war, terrorism, riots, acts of war, vandalism, fire, water damage, flooding, strike, sit-down strikes, lockouts, epidemics import and export restrictions, government measures, machine defects, disruptions in the supply of data and utilities, all this both in the company of Garlic Solutions and in third parties from whom Garlic Solutions has to obtain all or part of the required goods, as well as during storage or during transport, whether or not under its own management, and also due to all other causes that are not the fault or risk of Garlic Solutions.
4. Garlic Solutions also has the right to invoke force majeure if the circumstance that prevents (further) compliance occurs after Garlic Solutions should have fulfilled its obligations or while the agreement has already been partially executed.
5. If delivery is delayed by more than two months due to force majeure, both Garlic Solutions and the buyer are authorised to terminate the agreement in writing. In that case, Garlic Solutions is entitled to reimbursement for services already rendered and costs incurred.
Art. 6. - Retention of title
1. The ownership of goods delivered or work carried out by Garlic Solutions shall not be transferred to the purchaser until after Garlic Solutions has received from the purchaser full payment for the delivered goods, as well as all other services that Garlic Solutions may claim from the purchaser under other commitments.
2. In the event that the purchaser fails to comply with his obligations, or if Garlic Solutions has reasonable fear that the purchaser will not do so, Garlic Solutions is entitled to repossess the goods delivered under retention of title from the purchaser, or from third parties holding the goods for the purchaser. The purchaser grants Garlic Solutions permission in advance to enter his (business) premises, as well as the grounds, buildings and premises of third parties who hold goods for the purchaser. Garlic Solutions is also free to enter the aforementioned premises in order to check whether any of its goods are still present. All costs (of transport and storage) involved in such access shall be borne by the purchaser. Garlic Solutions is entitled to retain (partial) payments already received from the buyer, even after Garlic Solutions has taken back goods under retention of title.
3. The buyer is not authorised to sell, encumber or otherwise dispose of products subject to Garlic Solutions' reservation of title to third parties, unless this is done in the normal course of business and the invoices relating to the products in question (and any interest and cost obligations arising therefrom) have been paid in full.
4. The Buyer undertakes to adequately insure the goods that are subject to Garlic Solutions' retention of title and to keep them insured. The purchaser shall keep Garlic Solutions' goods physically separated from other goods and mark them as the property of Garlic Solutions. If the purchaser has not done so, the parties shall assume that the quantity of goods of the same type present at the purchaser's premises belong to Garlic Solutions.
5. If third parties seize goods subject to Garlic Solutions' reservation of title, or if the purchaser loses the authority or power to dispose of the goods in any way other than mentioned in paragraph 3, the purchaser is required to inform Garlic Solutions immediately.
6. At the first request of Garlic Solutions, the purchaser shall pledge to Garlic Solutions the claims the purchaser has against its purchaser(s) and insurer(s) in respect of the goods delivered under retention of title in accordance with Article 3:237 of the Dutch Civil Code.
7. The buyer is obliged to cooperate with the provisions of paragraphs 2, 4, 5 and 6 of this article on penalty of a fine of € 2,500 for each day (or part thereof) that the buyer fails to comply with these provisions. This penalty is not subject to judicial moderation and applies in addition to the right of Garlic Solutions to recover its actual damage from the buyer.
Art. 7. - Guarantees and complaints
1. Garlic Solutions guarantees that its performance to the purchaser is suitable for normal use and meets the statutory requirements applicable in the Netherlands during the normal period of use, provided the purchaser has used the performance in accordance with the purpose intended by AAA and in accordance with any instructions provided by AAA. If a good delivered by Garlic Solutions was produced by a third party and delivered to the Buyer by Garlic Solutions without any substantial modification, the warranty provided by Garlic Solutions for that good shall be limited to the warranty provided by the producer of that good.
2. The buyer is required to inspect the delivered goods, after delivery, for quality, quantity, other important characteristics, etc.
a. Complaints regarding any visible or observable defects regarding the performance of Garlic Solutions, such as the appearance, number, size or weight of the delivered product, must be notified in writing to Garlic Solutions by a professional purchaser within eight hours after delivery.
b. Complaints regarding any hidden or visible defects in the performance of Garlic Solutions, should be reported in writing to Garlic Solutions immediately, but within eight hours after detection.
If the buyer fails to report a complaint in time as specified in this article, any right of the buyer towards Garlic Solutions regarding the alleged defect in the performance shall lapse.
3. Any form of warranty on a product shall lapse if a defect is caused as a (direct or indirect) result of injudicious or improper use, use after the expiry date, improper storage, etc. This shall also apply if, without the written permission of Garlic Solutions, the buyer or third parties have processed or treated the product in any other manner than prescribed.
4. If it has been determined that a good delivered by Garlic Solutions is defective and a timely complaint has been made in accordance with the provisions of this article, Garlic Solutions shall only be required to replace or repair the defective good, at its discretion, after the buyer has returned it to Garlic Solutions. If it is determined that a good delivered by Garlic Solutions is not defective and/or no complaint has been made in time, in accordance with the provisions of this article, the buyer is obliged to reimburse Garlic Solutions for all costs incurred by Garlic Solutions in dealing with the alleged shortcoming.
5. Garlic Solutions explicitly excludes an appeal by the buyer, who is not a consumer, to Article 6:228 and 6:230 paragraph 1 of the Dutch Civil Code.
Art. 8. - Liability
1. If Garlic Solutions is liable for any reason whatsoever, this liability shall be limited to what is regulated in this clause.
2. Any liability of Garlic Solutions for indirect damage suffered by the buyer (and/or third parties), including consequential damage, loss of profit, lost savings and business stagnation, is excluded.
3. Garlic Solutions is only liable for direct damage suffered by the buyer (and only if the shortcoming has been reported in time, in accordance with Article 7). This liability shall never exceed the amount paid out by Garlic Solutions' insurer in the case in question. If, for whatever reason, the insurance company does not pay out or if the insurance company is absent, the compensation shall not exceed twice the invoice value (excluding VAT) of the item that caused the damage, on the understanding that Garlic Solutions' liability in such cases shall never exceed € 5,000.00.
4. Direct damage is exclusively understood as
a. the reasonable costs incurred to establish the cause and extent of the damage, insofar as such establishment relates to damage within the meaning of these conditions;
b. any reasonable costs incurred to make the faulty performance of Garlic Solutions conform to the agreement, unless the faultiness cannot be attributed to Garlic Solutions;
c. reasonable costs incurred to prevent or limit damage, insofar as the buyer can demonstrate that these costs have resulted in limiting direct damage as referred to in these general conditions.
5. Garlic Solutions explicitly excludes an appeal by the buyer to Sections 7:404, 7:407 paragraph 2 and 7:409 of the Dutch Civil Code. Furthermore, the purchaser shall indemnify Garlic Solutions against all (liability) claims made by third parties in connection with the agreement against Garlic Solutions. The purchaser is required to provide Garlic Solutions, upon request, with all (written) information desired by Garlic Solutions about the third party (and its history and relationship with the third party). Should Garlic Solutions be held liable by third parties, the purchaser is required to assist Garlic Solutions both in and out of court, at his expense, and to immediately do everything required for a successful legal defence. If the buyer fails to do so, Garlic Solutions is entitled to proceed without notice of default. All costs and damages incurred by Garlic Solutions shall be borne by the buyer.
6. Garlic Solutions is not liable for damage of any kind, caused by the fact that Garlic Solutions has relied on inaccurate and / or incomplete data provided by or on behalf of the buyer.
7. The limitations of liability for direct damages in these conditions do not apply if the damage is due to intent or gross negligence of Garlic Solutions or its subordinates.
Art. 9 - Product standards
1. With regard to the (sale to third parties of the) delivered goods, Buyer shall act in accordance with the applicable requirements of (food) safety.
2. The Buyer shall provide all necessary cooperation if Garlic Solutions wishes to issue a public warning, whether or not on the basis of European or Dutch regulations regarding general product safety, or wishes to proceed with a product recall or other measures. In such case, the purchaser is obliged to remove from the market the goods delivered that have been put into circulation and that have a (supposed) defect, within a reasonable period to be specified by Garlic Solutions. All costs associated with this shall be borne by the purchaser, unless the cause of the defect is not at the expense and risk of the purchaser pursuant to the agreement or by law.
3. Without prior consultation with and written permission from Garlic Solutions, the purchaser shall not take any action in connection with European or Dutch regulations concerning general product safety, such as a "product recall" or public warning, or inform a competent authority under any regulations concerning the alleged unsafety of a delivered item.
4. In order to facilitate a possible public warning or product recall, the buyer shall at all times record to whom, when and in what quantities deliveries of goods were made by Garlic Solutions to the buyer.
Art. 10. - Intellectual property and copyrights
1. Without prejudice to the other provisions of these general terms and conditions, Garlic Solutions reserves the rights and powers vested in Garlic Solutions under the Copyright Act and all other intellectual laws and regulations. No permission to use the intellectual property of Garlic Solutions may be derived from the agreement between Garlic Solutions and the buyer, unless this is explicitly stated.
2. All documents provided by Garlic Solutions, such as reports, recommendations, agreements, designs, sketches, drawings, preparation methods, recipes, etc. are intended solely for the use of the buyer and may not be reproduced, made public or disclosed to third parties without the prior written permission of Garlic Solutions, unless the nature of the documents provided dictates otherwise.
3. Garlic Solutions retains the right to use the knowledge obtained during the execution of the work for other purposes, insofar as no confidential information is disclosed to third parties.
4. If the provisions of this article are violated, the buyer shall forfeit an immediately payable penalty of € 10,000 per individual violation, as well as a penalty of € 1,500 per day or part thereof that the violation takes place or has taken place. This penalty shall be in addition to Garlic Solutions' right to recover the damage actually suffered from the buyer.
Art. 11. - Secrecy
1. The Buyer is required to keep confidential from third parties all information that he obtains as a result of the (commercial) relationship with Garlic Solutions, whether intentionally or unintentionally, and of which the Buyer knows or should suspect that Garlic Solutions might have a (theoretical) interest in maintaining confidentiality, including but not limited to all possible financial data and all forms of intellectual property (including preparation methods and recipes).
2. If the purchaser engages third parties who could possibly become aware of the information referred to in paragraph 1, the purchaser shall impose a contractual confidentiality on these third parties which is at least equal to that agreed here.
3. The confidentiality obligation shall not apply if a party is required to disclose information as a result of a statutory provision or a court ruling which has become final.
Art. 12. - Final provisions
1. All agreements to which these provisions relate are governed by Dutch law. The applicability of the Vienna Sales Convention is excluded. Except when a consumer has been contracted, each dispute between parties shall be submitted exclusively to the competent court in Garlic Solutions' place of business in the Netherlands. Only Garlic Solutions also has the right to adjudicate the court that is competent in accordance with the statutory provisions.
2. Without prejudice to the provisions in paragraph 1 of this article, the buyer and Garlic Solutions agree, only if Garlic Solutions so wishes, to submit a dispute to an arbitration institution chosen by Garlic Solutions.
3. If and insofar as these general terms and conditions appear to be in conflict with any mandatory provision of national or international law, only this provision shall be considered as not agreed upon and the remaining provisions of these general terms and conditions shall continue to bind the parties. The parties undertake in that case, in consultation, to agree on a new provision that corresponds as closely as possible to what the parties intended in the provision found non-binding.
4. Garlic Solutions may amend and/or supplement these general terms and conditions at any time and declare the new version applicable to the buyer, if Garlic Solutions observes an effective period of two months after the written notification of the amendment to the buyer. The buyer shall be bound by the new conditions at the end of the effective period, unless he has terminated the contractual relationship with Garlic Solutions no later than that date.
5. If these general conditions have been translated into a language other than Dutch, the Dutch language shall be leading in the interpretation thereof.