FORTUNE COFFEE – GENERAL TERMS AND CONDITIONS OF SALE AND DELIVERY
Fortune Coffee B.V.
PO Box 6041
2702 AA Zoetermeer
Chamber of Commerce: The Hague, 27157150
Version 2018
ARTICLE 1 – Applicability
1.1 These terms and conditions apply to all offers and agreements in which Fortune Coffee B.V. or any company affiliated with it on the basis of a franchise agreement, to be referred to as "FC", acts as producer and/or seller and/or supplier of goods and services, all in the broadest sense, in respect of its co-contracting party, hereinafter referred to as the "other party," and all agreements ensuing therefrom.
1.2 Differing terms and conditions of the other party will only be part of the agreement concluded between the parties if and to the extent that both parties have expressly so agreed in writing. The full or partial nullity or nullification of any provision of these general terms and conditions will not affect the applicability of all the other provisions. The terms and conditions drawn up in Dutch will prevail over translations and/or other derivative versions at all times.
ARTICLE 2 – Offers
2.1 All quotes/offers are subject to contract unless they state a period for acceptance by the other party. If an offer/quote contains an offer subject to contract and this offer is accepted, FC will have the right to revoke the offer within 2 days of receipt of the acceptance.
2.2 The contents of brochures, printed matter, etc., are not binding on FC, unless expressly referred to in the agreement and the relevant document is attached to the agreement.
ARTICLE 3 – Agreements
3.1 The conclusion of agreements, by whatever name, is conditional on FC's express acceptance. Such express acceptance will be evidenced by FC's written confirmation or by its performance of the agreement.
3.2 Agreements with subordinate FC staff members will not be binding on FC to the extent that they have not been confirmed by FC in writing. All employees who do not have a written power of attorney are to be regarded as subordinate staff in this context.
3.3 Arrangements made orally and/or by telephone are only valid if confirmed by FC in writing.
3.4 Amendments of the agreement are only valid if expressly communicated to FC in writing and expressly accepted by FC in writing.
3.5 FC is authorised to engage third parties for the performance of that which has been agreed.
ARTICLE 4 – Prices
4.1 All prices stated are exclusive of the VAT payable by law.
4.2 FC is authorised to change the prices in agreements already concluded if:
a. such a change is due to a fluctuation in established currency exchange rates;
b. subsequent to the conclusion of the agreement, there is a change in the prices of items not produced by FC itself, wages and salaries, social insurance contributions or other government charges, levies of duties, freight and insurance premiums.
4.3 In the event referred to in 4.2, the other party will not have the right to terminate the agreement either in full or in part unless the other party is a natural person who is not acting in the conduct of a profession or business and the price increase occurred within a period of less than 3 months after conclusion of the agreement. In that case, the other party will be authorised to terminate the agreement.
4.4 In the event of 4.2, FC will be authorised to refuse delivery if it can reasonably assume that the other party will not perform the agreement in accordance with the change.
4.5 FC will at all times have the right to demand adequate security from the other party for the other party's performance of its obligations to FC before making or continuing its delivery, absent which FC will be entitled to terminate the agreement.
ARTICLE 5 – Delivery
5.1 The delivery period has been set in the expectation that FC will be able to continue working as foreseen at the time of the offer and that the necessary materials will be delivered to it on time.
5.2 The agreed delivery period will commence, or will be deemed to have commenced, upon FC's receipt of all data and documents necessary for the performance of the agreement and any down payments and/or security.
5.3 Agreed delivery periods may never be regarded by the other party as strict deadlines, unless expressly agreed otherwise in writing. In principle, only in the latter situation will exceeding the delivery period give rise to damages, if agreed in writing. In all other cases, FC will only be liable for payment of damages due to late delivery if the other party has given FC written notice of default, thereby allowing FC an additional period in which to fulfil its obligations equivalent to at least one-half the delivery period originally agreed.
5.4 If the delivery period has been exceeded, the other party will not automatically have the right to terminate the agreement either in whole or in part, except in the event of intent or gross negligence on the part of FC.
5.5 Goods are considered to have been delivered once they have been received and accepted by the other party at the agreed location.
5.6 Items are transported at FC's expense. The means of transport will be determined by FC. Any derogation from this paragraph must be in writing.
5.7 FC will be authorised to refuse delivery of its food products to premises made available by or on behalf of the other party if these premises do not meet the requirements of safety and cleanliness to be set by FC, and to invoice the other party for the resulting damage.
5.8 As long as the transfer of title referred to in Article 10 has not yet taken place, items already delivered are not to be treated as assets.
5.9 If the other party has not taken possession of any items by the end of the delivery period or if any items cannot be installed in the workplace, the items will be at the disposal of the other party and will be stored by FC at the other party's risk and expense. At FC's discretion, FC may also give the other party notice of default and, after expiry of the period stated in the notice of default, destroy the items ordered at the other party's expense. The foregoing is without prejudice to the other party's obligation to pay the purchase price plus any costs of storage and/or destruction.
5.10 Delivery will be made as a single delivery at an address specified by the other party, even if the items ordered for the other party are intended to be distributed to various addresses. The other party will guarantee proper access to the destination/place of unloading at that time and will be responsible for unloading.
ARTICLE 6 – Partial deliveries
6.1 If it has been agreed that the items purchased will be delivered in several shipments, hereinafter referred to as partial delivery, whether or not on demand, each shipment will be considered one individual delivery transaction, subject to all legal consequences ensuing therefrom.
6.2 As a result of the provisions of paragraph 1, payment for the individual partial deliveries must be effected within 14 days of the invoice date of each individual partial delivery, unless expressly agreed otherwise in writing.
6.3 In the event of paragraph 1, the other party will be obliged to immediately accept each individual partial delivery.
6.4 If the other party fails to pay for any partial delivery on time, FC will have the right to suspend further deliveries, subject to the provisions of paragraph 2, until the other party has fulfilled its obligations.
6.5 In the event of paragraphs 2 and 4, FC will furthermore have the right to terminate the agreement in whole or in part and/or to claim damages on the basis of attributable failure, without notice of default being required to that end and without court intervention.
6.6 If the items yet to be delivered have not yet been manufactured or purchased by the supplier, the damages referred to in paragraph 5 of this article will be fixed at 30% of the purchase price of the items yet to be delivered.
ARTICLE 7 – Installation
7.1 The prices stated in the agreement include installation costs, unless agreed otherwise in writing.
7.2 If an agreement includes installation costs, the costs referred to in Articles 7.3 and 7.4 will be borne by the other party, as well as all additional costs, in particular the costs arising as a result of the other party's failure to perform the obligations stated below.
7.3 The other party will ensure that FC's technician can commence work upon arriving at the place where the item is to be installed.
7.4 Any additional work, such as facilities for mounting machines, installation of pipes, wall sockets and power strips, will be at the expense of the other party and will not be performed and/or delivered by FC, except at prices to be charged separately for that purpose.
7.5 All facilities and/or measures for the placement of machines to be installed and/or for their proper functioning, whether or not provided in accordance with data and drawings supplied by FC to the other party, will be at the other party's expense and risk if executed by third parties. FC will not be liable for their execution in any way.
7.6 Without prejudice to the provisions of this article, FC will have the right to refuse to install any machines delivered by it if, in FC's opinion, the measures taken have not been executed in accordance with the requirements to be set by FC, without being required to pay any damages to the other party.
7.7 The other party will ensure that all necessary safety and other precautionary measures and environmental regulations will be observed by it and by the staff used by it in the performance of the agreement.
7.8 If the technician cannot continue the installation work in the usual manner as a result of circumstances outside of FC's control, the costs ensuing therefrom will be borne by the other party.
ARTICLE 8 – Progress, performance of work
8.1 If the deliveries or work cannot take place normally or without interruption due to reasons beyond FC's control, FC will be entitled to charge the additional costs ensuing therefrom to the other party.
8.2 If, during performance of the work accepted by FC, it transpires that performance of the work is impossible, either as a result of circumstances unknown to FC or due to any force majeure event whatsoever, FC will have the right to demand that the instruction given to FC be changed in a way that will make it possible to perform the work, except where this will never be possible as a result of said unknown circumstances or force majeure. FC will then be entitled to full compensation for the work already carried out by it.
8.3 All expenses incurred by FC at the request of the other party will be borne entirely by the latter, unless agreed otherwise in writing.
ARTICLE 9 – Transport risk
9.1 If shipment of the items ordered takes place in a manner to be determined by FC, the transport risk will be at FC's expense and risk. Otherwise, it will be at the expense of the other party.
9.2 If the transport takes place in a manner to be determined by FC, FC must insure itself against any damage resulting from such transport.
ARTICLE 10 – Retention of title
10.1 Delivery of the items to the other party will take place subject to the express retention of title until the moment that the other party has fully complied with its obligations agreed in consideration of such delivery, such as payment, including costs of installation and/or other costs, which will also be considered to include the performance owed for the other party's failure to perform the agreement as concluded.
10.2 By entering into an agreement with FC and the registration thereof, the other party creates an undisclosed pledge in advance on all items to be delivered by FC to the other party as security for payment by the other party to FC of all of FC's claims against the other party, of whatever nature, until all of those claims have been paid.
10.3 The other party will be liable towards FC for all damage to the items occurring as from the moment of delivery until the moment of transfer of title.
10.4 FC's reliance on the retention of title will not affect FC's right to claim damages, compensation for lost profits and interest.
10.5 The other party is obliged to inform FC in writing without delay if any third parties are asserting rights with regard to items subject to a retention of title pursuant to this article.
10.6 The other party is not authorised to give any delivered items as security to third parties and/or to create a non-possessory pledge on the items and/or to place the items under the actual control of one or more financiers (warrantage) as long as FC's retention of title applies. If the other party nevertheless proceeds to do so, this will be considered attributable non-performance on the part of the other party. In that event, FC may immediately suspend its obligations under the agreement without being required to give any notice of default or to terminate the agreement, without prejudice to its right to interest and compensation for damage and lost profits. If the other party violates this prohibition, it will forfeit a penalty of 25% of the purchase price without prejudice to FC's right to damages if this amount exceeds the penalty amount.
10.7 The buyer/client hereby grants unconditional and irrevocable consent to FC or to one or more third parties to be designated by FC to enter all those places where FC's property will then be located, and to take those goods with it/them in all cases in which FC wishes to exercise its property rights.
ARTICLE 11 – Payment
11.1 Net cash payment is required within 14 days of the invoice date, even if delivery cannot be effected in accordance with Articles 5, 6 and 7.
11.2 If an invoice has not been paid in full after expiry of the period referred to in paragraph 1:
a. The other party will be charged a late payment surcharge of 2% as from that date, without any further notice of default being required.
b. The other party will owe FC interest in the amount of the statutory interest in accordance with Article 6:119/120 of the Dutch Civil Code without any notice of default being required to that end. In this respect, parts of a month will be considered full months. Companies as mentioned in Article 6:235(1) of the Dutch Civil Code will owe an increase of 4% in addition to the aforesaid interest.
c. After having been given notice of default by FC, the other party will also owe extrajudicial collection costs in the event of non-performance of its payment obligations, which will be calculated in accordance with the collection rate of the Netherlands Bar, but set at a minimum of € 250. In addition, the other party will owe FC all legal costs and/or costs of enforcement measures, including the costs of an application for bankruptcy, etc.
11.3 At FC's discretion, the agreement may be terminated in whole or in part in the foregoing or similar circumstances without further notice of default or court intervention, whether or not combined with a claim for damages.
11.4 If the other party has failed to meet its payment obligations on time, FC will be authorised to suspend performance of the obligations it has assumed towards the other party for the provision/performance of work until such time as payment has been effected or proper security has been provided to this end. The same applies even before the moment of default if FC reasonably suspects that there are reasons to doubt the other party's creditworthiness.
11.5 Payments made by the other party always serve to settle all interest and costs owed and subsequently to settle the longest outstanding invoices due and payable, even if the other party states that the payment relates to a later invoice.
ARTICLE 12 – Warranty
12.1 Subject to the limitations set out below, FC guarantees the soundness and good quality of the equipment delivered for a warranty period of 12 months, to be calculated from the time of delivery, unless expressly agreed otherwise in writing.
12.2 For items or parts of items not produced by the supplier itself, FC will only issue a warranty if and to the extent that its supplier, in turn, has issued a warranty to FC. In this case, FC will inform the other party upon delivery of the items and/or supply of the services of the warranty provisions of its suppliers and the period within which that warranty may be invoked.
12.3 The obligation ensuing from the foregoing in paragraph 1 only applies to FC if the other party demonstrates that the unsoundness or defect arose within the warranty period stated in paragraph 1 and is exclusively the result of the unsoundness or poor quality of the materials used, the manufacture or the design.
12.4 In any event, the warranty does not cover defects that occur in, or are wholly or partly the result of:
a. a failure to observe instructions of use and maintenance or use other than intended normal use;
b. normal wear and tear;
c. mounting/installation or repair by third parties, including the other party;
d. the application of any government regulation regarding the nature or quality of the materials used;
e. materials or items used in consultation with the other party;
f. materials or items that the other party has provided to FC to be processed;
g. parts purchased by the other party from third parties to the extent that the third party has not issued a warranty to the other party;
h. the use of raw materials not supplied by FC as regards machines and/or equipment.
12.5 If the warranty as stated in this article applies, FC will be required, at its discretion, to either replace or repair the unsound items.
12.6 Replacement will not extend beyond sending a new item free of charge.
12.7 If FC replaces parts/items in performance of its warranty obligations, the replaced parts/items will become the property of FC.
12.8 The original warranty period will be maintained, notwithstanding replacement or repair.
12.9 With regard to the repair or revision work or other services executed by FC, only the soundness of the execution of the work as instructed will be guaranteed for a period of 12 months, unless expressly agreed otherwise in writing. This warranty comprises FC's mere obligation to carry out the relevant work again in the event of faulty workmanship.
12.10 FC's alleged failure to perform its warranty obligations will not release the other party from the obligations ensuing for it from any agreement concluded with FC.
ARTICLE 13 – Liability
13.1 FC will not be liable for any damage caused to the other party and/or third parties by FC or by the persons or tools used by it in the performance of the agreement, subject to the provisions of Article 12 and except in the event of intent or gross negligence.
13.2 FC will never be liable towards the other party for any consequential damage, trading loss, indirect damage, damage to third parties and/or lost profits, except in the event of intent or gross negligence on the part of FC.
13.3 FC will not be liable for any damage suffered by the other party and/or third parties that was caused by the product itself either directly or indirectly, except where FC is to be regarded as the producer within the meaning of Article 6:185 of the Dutch Civil Code and paragraphs (a) to (f) of that article are not applicable, and then only for the damage referred to in Article 6:190 of the Dutch Civil Code.
13.4 Regardless of what has been agreed, FC's liability, of whatever nature, will never extend beyond reimbursement of the invoice amount of the items that resulted in damage for the other party.
13.5 Advice given by FC with regard to the characteristics, design, dimensions, etc., are provided to the best of its knowledge, and the other party cannot claim any damages from FC in connection with the advice in question.
13.6 In the event that items are manufactured in accordance with drawings, models, samples or other instructions, all in the broadest sense, that have been received from the other party or from third parties acting on the other party's behalf, the other party will assume the full warranty and will indemnify FC in that respect, to the effect that the manufacture and/or delivery of these articles will not infringe any trademark, patent, utility model or trade model or any other right of third parties.
13.7 If any third party objects to the manufacture and/or delivery based on an alleged right, FC will be authorised to simply cease the manufacture and/or delivery immediately and claim reimbursement of the costs incurred from the other party, without prejudice to its right to damages and without the other party in turn being entitled to damages from FC.
13.8 FC will not be liable for damage to or loss of items of the other party and/or third parties entrusted to it in connection with the preparations for or performance of an agreement, except in the event of intent or gross negligence on the part of FC.
13.9 The other party will indemnify FC against any third-party claims for damages against the other party based on liability of whatever nature.
ARTICLE 14 – Force majeure
14.1 For the purposes of these general terms and conditions, force majeure is understood to mean any circumstance outside of the parties' control that permanently or temporarily impedes performance of the agreement. Force majeure includes, but is not limited to, unsound or late delivery by suppliers; illness of staff; defects in tools and means of transport; fire; industrial action; traffic impediments; government measures; war or other disturbances; and weather influences.
14.2 In the event of paragraph 1, both parties will be authorised to terminate the agreement without any notice of default being required to that end and without court intervention or to suspend their obligations for the duration of the force majeure, without either party being entitled to damages.
ARTICLE 15 – Claims or complaints
15.1 The other party is obliged to inspect the items immediately upon receipt. Any visible defects that are discovered must be recorded on the waybill and/or accompanying slip and notified to FC within 24 hours, with immediate written confirmation to FC.
15.2 The right to complain only applies if the other party has notified the shortages of delivery, defects in the items delivered or delay in the delivery to FC within 8 days of discovery of these shortages or defects or this delay, without prejudice to the provisions of paragraph 1.
15.3 The right to complain is void if the items have been processed or resold or if the complaint was not filed within the periods stated in 15.1 and 15.2. In that event, the items will be deemed to have been received in good condition.
15.4 If the items and/or services supplied do not meet the requirements of the agreement, the other party will have the right to demand proper performance of the agreement from FC, hereinafter referred to as "complaint".
15.5 Defects in part of the delivery will not create a right to refuse the entire shipment.
15.6 Returning the items delivered is only permitted if express written consent has been obtained from FC to this end. The return shipment will only be at FC's expense and risk if FC has expressed its express written agreement in advance and has declared the complaint to be well-founded. In such cases, items must be returned in a manner to be determined by FC.
15.7 The right of complaint does not give the other party the right to suspend its payment obligation.
ARTICLE 16 – Termination
16.1 If the other party fails to perform one or more of its obligations ensuing from the agreement, the law, custom or requirements of reasonableness and fairness under Article 6:248(1) of the Dutch Civil Code, is declared bankrupt, applies for a suspension of payments or debt restructuring, proceeds to liquidate its property, is subject to a full or partial attachment of its assets, is placed under guardianship or otherwise loses the power to dispose of all or some of its assets and/or loses its legal capacity in respect of those assets, FC will have the right to consider the agreement terminated, without any notice of default being required and without court intervention.
16.2 If the event of paragraph 1 occurs, FC will have the right to cease further deliveries and to demand immediate payment for the items and services supplied to date.
16.3 Cancellation of the agreement by the other party is only possible with the consent of FC. In that case, the other party, in addition to being obliged to pay FC at least 20% of the purchase price (contract price), will also be obliged to take receipt, at cost, of items already ordered but which have not yet been processed at that time. The other party will be liable towards third parties for the consequences of the cancellation and will indemnify FC in that respect. Amounts already paid by the other party will not be refunded.
ARTICLE 17 – Industrial property
17.1 Without express prior written consent from FC, the other party is prohibited from copying, giving third parties access to or making available to third parties any drawings, pictures, product compositions, dimensions and weight information or any other information provided by FC to the other party under the agreement or instructing others to do so.
17.2 If special packaging is designed and/or a special product is assembled for the other party by FC at the other party's request, that design and/or product assembly will remain FC's property at all times.
17.3 If the event of paragraph 3 occurs and the other party terminates the agreement, for whatever reason, the other party will be obliged to purchase the special packaging material produced by FC at cost, to the extent FC still has any in stock.
ARTICLE 18 – Confidentiality
18.1 Both FC and the other party are required to maintain confidentiality with regard to all information exchanged under the agreement concluded. FC will not be liable for any damage suffered by the other party and/or third parties that was caused by the product itself either directly or indirectly, except where FC is to be regarded as the producer within the meaning of Article 6:185 of the Dutch Civil Code and paragraphs (a) to (f) of that article are not applicable, and then only for the damage referred to in Article 6:190 of the Dutch Civil Code.
18.2 Regardless of what has been agreed, FC's liability, of whatever nature, will never extend beyond reimbursement of the invoice amount of the items that resulted in damage for the other party.
ARTICLE 19 – Disputes and applicable law
19.1 Any disputes arising between the parties will be adjudicated by the competent court in the place of business or jurisdiction of the FC branch, without prejudice to FC's right to apply to the court that is otherwise competent.
19.2 These general terms and conditions and all agreements that may be governed by these general terms and conditions are governed exclusively by Dutch law, including the Vienna Convention (Convention on the International Sale of Goods 1980).
ARTICLE 20 – Privacy protection
20.1 FC will handle and secure the personal data obtained from the other party in accordance with the General Data Protection Regulation (GDPR). We have drawn up a privacy policy for this purpose, which is available on our website at www.fortune.nl/privacy.
Filed with the Chamber of Commerce