1. Applicability of these terms and conditions
1. These General Terms and Conditions are applicable to all offers made by Tema Fine Foods (COC No. 17201045) and to all agreements concluded by Tema Fine Foods. Especially, these terms and conditions are also applicable to agreements concluded by Tema Fine Foods for the delivery of products and services to customers of Tema Fine Foods. Also, the General Terms and Conditions are applicable to all acts connected therewith, both of a preparatory and of an executive nature, such as designated offers, order confirmations and deliveries.
2. In the following will be understood under “customer”, the person to whom Tema Fine Foods makes an offer to the delivery of products or services, as well as the person with whom Tema Fine Foods concludes an agreement for the delivery of products or services.
3. The applicability of the general terms and conditions of the customer or third parties is explicitly rejected by Tema Fine Foods.
4. If any stipulation of these General Terms and Conditions for whichever reason is not valid, then these General Terms and Conditions remain otherwise in force.
5. Deviations from and additions to these General Terms and Conditions apply only if Tema Fine Foods has consented therewith and these have been agreed in writing.
2. Designated offers and agreements
1. All offers or designated offers of Tema Fine Foods are each time non-binding unless explicitly stated otherwise. If a non-binding offer is accepted by customer, then Tema Fine Foods has the right to recall the offer.
2. The content of all price lists, brochures and other data provided with an offer or designated offer, has been stated as accurately as possible. The concerned data are only binding for Tema Fine Foods, if this is confirmed explicitly in writing by Tema Fine Foods. Designated offers are based on the data possibly provided by the customer at the application.
3. Agreements are concluded on the moment that (1) Tema Fine Foods confirms an offer or order of customer by phone or in writing (2) on the moment that Tema Fine Foods starts with the execution of the agreement; or (3) on the moment that customer receives an invoice for the concerned agreement.
3. Prices
1. All prices are exclusive of VAT and other levies which are imposed by the government. Insofar not agreed otherwise, transport, shipping costs and costs with regard to the insurance of the goods will be for the account of customer.
2. If the prices and/or rates of the suppliers of Tema Fine Foods, or other price determining factors, undergo an increase between the date of conclusion of the agreement and the date of delivery, then Tema Fine Foods is authorised to modify the price accordingly.
4. Delivery and take-off
1. Unless stated otherwise in writing in the designated offer or agreement, delivery takes place by making available of the products to customer at the address of Tema Fine Foods. As moment in time of delivery applies the moment on which the ordered products have been taken into receipt.
2. The customer is obliged to cooperate to the delivery, as well as to take the delivered into receipt. Take-off will be deemed to have been refused, if the ordered products have been offered for the delivery, but delivery for whichever reason has proven to be impossible. In that case applies the day on which take-off is refused, as the day of delivery. If a refusal of take-off occurs, then the customer is in default by law.
3. In case of refusal of take-off of the delivered by the customer, Tema Fine Foods reserves the right to charge costs possibly related thereto (including the costs of storage and transport) to the customer. If the delivery concerns perishable goods, that as a consequence of the refusal of the take- off are lost, then Tema Fine Foods has, without further provision, a right to complete compliance with the agreement by customer, without that Tema Fine Foods still has an obligation to delivery.
4. From the moment of delivery, including the moment in time mentioned in section 2 of this article, the delivered is for the account and risk of the customer.
5. Stated delivery times shall never to be regarded as a fatal term, unless from the nature of the products to be delivered, it derives that the stated delivery times indeed must be regarded as a fatal term. Customer must offer Tema Fine Foods after all a reasonable term to delivery.
6. If the suspicion exists, that customer cannot comply with his payment obligations, then Tema Fine Foods reserves the right to deliver orders C.O.D., or to postpone the delivery of the products until the customer has provided in another manner sufficient surety for the payment.
5. Payment and retention of title
1. Payment must take place within 10 days after date of the invoice, unless otherwise agreed, in the absence of which the customer shall be in default by law, without that any notification of default is required.
2. From the moment, on which the customer is in default, up to the day of full payment, he is liable to pay to Tema Fine Foods a delay interest of 1 % per month, or part thereof, notwithstanding the right of Tema Fine Foods to full compensation of damages on basis of the law.
3. Set-off by customer with claims on Tema Fine Foods is not permitted.
4. All costs of collection of the amounts due by the customer, are for the account of the customer. The height of the collection costs due to Tema Fine Foods, is 15% with a minimum of € 50.
5. Payments of the customer to Tema Fine Foods shall each time be deemed to serve to payment of the due interest and/or costs and subsequently to payment of the oldest outstanding invoices.
6. Notwithstanding what otherwise is stipulated in these terms and conditions, the property of products delivered by Tema Fine Foods to the customer, remains with Tema Fine Foods, insofar the nature of the delivered products does not object hereto. The property remains with Tema Fine Foods until the moment of full payment by the customer of all what he is liable to pay to Tema Fine Foods.
7. Tema Fine Foods is without further notification of default authorised, to (let) remove the delivered products, on basis of the stipulations in this article, from the customer or his holders, if the customer does not comply with his obligations. The customer is required to granting cooperation to the aforementioned removal of the products.
6. Suspension and dissolution
1. Tema Fine Foods is authorised to suspend the compliance with its obligations or to dissolve the agreement in whole or in part, if: – customer does not or not fully comply with the obligations from the agreement; – circumstances come to the knowledge of Tema Fine Foods after the conclusion of the agreement give good ground to fear that customer shall not comply with his obligations.
2. Furthermore, Tema Fine Foods is authorised to (let) dissolve the agreement if circumstances occur which are of such a nature, that unchanged maintaining of the agreement in reasonableness may not be expected.
3. If the agreement is (partially) dissolved, then the claims of Tema Fine Foods on the customer will immediately be payable upon demand. If Tema Fine Foods suspends the compliance with its obligations, then it retains its claims from the law and agreement.
4. Tema Fine Foods retains each time the right to claim compensation of damages.
7. Force Majeure
1. If Tema Fine Foods by Force Majeure of a permanent or temporary nature is hindered to (further) execute the agreement, then Tema Fine Foods is authorised to, without any obligation to compensation of damages, dissolve the agreement in whole or in part by a written notification serving thereto, without intervention of the courts, or to suspend the further execution of the agreement, notwithstanding the right of Tema Fine Foods to payment by the customer for performances already executed by Tema Fine Foods.
2. Under Force Majeure will be included all circumstances, because of which Tema Fine Foods temporarily or permanently is not able to comply with its obligations, such as (but not limited to) work strike with it or its suppliers, unforeseeable transport problems, fire, unforeseeable government measures, including in each case import and export bans and limitations and enterprise disruptions with it or its suppliers, as well as unforeseeable default by its suppliers because of which Tema Fine Foods cannot comply (anymore) with its obligations towards the customer.
8. Conformity
1. Tema Fine Foods strives for the highest possible quality of the products delivered by it, that possess the characteristics that are necessary for a normal use thereof.
2. Customer must examine the delivered direct after delivery. Visible shortfalls or damage of the delivered or the packaging that are present at delivery, must be stated by the customer on the delivery slip, the invoice or the transport documents, in the absence of which the customer will be deemed to have taken-off and to have approved what has been delivered.
3. If a product delivered by Tema Fine Foods does not comply with the agreed characteristics, then the customer must notify Tema Fine Foods hereof, within 3 days after discovery and no later than within 7 days after delivery, in writing.
4. If the product does not comply with the agreed characteristics, and a timely complaint had been made, such as stated under sections 2 and 3, then Tema Fine Food will proceed to replacement or repair of the defective product.
9. Liability
1. In case of defectiveness of the delivered product (article 8), the liability of Tema Fine Foods is limited to replacement or repair of the defective product.
2. In other instances, Tema Fine Foods is only liable for the direct damage that is the consequence of wilful intent or conscious recklessness on the side of Tema Fine Foods. The liability for direct damage is limited to the selling price of the products of the concerned order delivered by it. Tema Fine Foods is never liable for indirect damage, including consequential damage, missed profit, missed savings and damage by enterprise stagnation.
3. In all instances, the liability of Tema Fine Foods is limited to the amount that in the prevalent case is eligible for pay-out under its insurance.
10. Applicable law
1. Solely the Laws of the Netherlands are applicable to all agreements between Tema Fine Foods and customer.
2. All disputes between Tema Fine Foods and customer shall solely be submitted to the competent court of the District Court for Oost-Brabant, the Netherlands.
