Terms of service
GENERAL TERMS AND CONDITIONS OF SALE AND DELIVERY BIERBROUWERIJ DE MAGISTRAAT B.V.
1.1 These general terms and conditions (“Terms and Conditions”) apply to all price lists, offers, quotations and deliveries of Bierbrouwerij de Magistraat B.V. (“The Magistrate”) and all agreements that De Magistrate enters into with the other party, including agreements related to and/or arising from distribution agreements between The Magistrate and a buyer, hereinafter referred to as: “the other party”.
1.2 Additional and/or deviating conditions – which also include purchasing conditions – of the other party do not form part of the agreement between De Magistrate and the other party and are therefore not binding on De Magistrate, unless De Magistrate accepts the other party's conditions in writing in whole or in part.
1.3 Deviations from these general terms and conditions are only binding if and insofar as this has been expressly agreed in writing and only for the offers and agreements to which they apply. With regard to the other offers and agreements, these general terms and conditions remain in full force.
1.4 In these terms and conditions, 'in writing' means: by letter or by e-mail.
1.5 Insofar as these terms and conditions have also been drawn up in a language other than Dutch, the Dutch text is always decisive in the event of differences.
2. Quotations, conclusion and amendment of agreement
2.1 All price lists and offers and quotations provided by De Magistrate are without obligation, even if a term for acceptance has been set in the offer. The agreement is only concluded after written (order) confirmation from De Magistrate. Changes to assignments only bind De Magistrate insofar as these changes have been confirmed in writing by De Magistrate.
2.2 Objections to the (order) confirmation must be reported in writing to De Magistrate before the execution of the agreement by De Magistrate, but in any case within 5 working days after the date of dispatch of the (order) confirmation.
2.3 Any offer or promise made by a representative of De Magistrate is only binding insofar as the latter has confirmed this in writing.
2.4 All statements and/or statements by De Magistrate with regard to its products are made to the best of its knowledge, but are not binding. Deviations and/or changes of any nature and scope are expressly reserved by De Magistrate, as are changes to its products.
3.1 Unless the parties expressly agree otherwise, the products ordered by the other party will be delivered Free Carrier, Almkerk, the Netherlands (FCA, Incoterms 2010). 3.2 The Magistrate will make every effort to deliver the products ordered by the other party within the delivery terms agreed upon by the parties. Agreed delivery times are always indicative and never count as strict deadlines, unless explicitly agreed otherwise in writing. If a delay threatens or occurs, De Magistrate and the other party will discuss this as soon as possible. The other party will ensure that it is easily accessible for consultation. Only in the event of excessive exceeding (more than 6 weeks) of the agreed delivery time does the other party have the right to dissolve the agreement, unless the exceeding is caused by force majeure. However, the other party is never entitled to any penalty or compensation.
3.3 The delivery period does not commence until an agreement has been concluded in accordance with the provisions of Article 2 and the other party has provided De Magistrate with data and information required for the execution of the agreement and De Magistrate has received the agreed advance payment from the other party.
3.4 The Magistrate reserves the right to cancel orders or not deliver products or deliver them later due to availability of stocks or the discontinuation of production of products. The Magistrate will inform the other party of this as soon as possible. In that case, the other party is not entitled to any penalty or compensation.
3.5 The other party has an obligation to purchase. If the other party does not receive the products on the agreed date, the other party is in default and De Magistrate can choose (i) to dissolve the agreement without judicial intervention; (ii) send the products to the other party at the expense and risk; (iii) retain the products at the expense and risk of the other party. All costs ensuing from the above circumstances, including, among other things, any loss of revenue and storage costs, shall be borne by the other party. The above applies without prejudice to the other rights accruing to De Magistrate.
3.6 The Magistrate is entitled, but not obliged, to deliver the products in partto be delivered, in which case the (payment) conditions described below also apply to each partial delivery.
4. Rates and Prices
4.1 Unless the parties expressly agree otherwise, De Magistrate is at all times entitled to periodically change the agreed rates and/or prices.
4.2 All prices are exclusive of VAT, import duties and exclusive of (statutory) excise duties, unless expressly stated otherwise in writing. Prices are based on Free Carrier, Almkerk, Netherlands (FCA, Incoterms® 2010) unless otherwise stated in writing. With regard to deliveries within the Netherlands that are not intended for export, the Dutch statutory regulations regarding excise goods and VAT apply.
4.3 Any change in one or more of the cost-determining factors, such as purchase prices (whether or not changed with retroactive effect), exchange rates, import duties, increases in raw material and material prices, production costs or currency changes, which occur after order confirmation but before delivery, Magistrate has the right, at its own discretion, to charge a correspondingly higher price or to cancel the order, without the other party having any right to compensation in this respect. De Magistrate is also entitled to pass on any change in the VAT rate to the other party.
4.4 In the case of an export transaction, the other party undertakes to import the products delivered by De Magistrate in a correct and legal manner, whereby it undertakes to pay the applicable levies such as alcohol excise duty and VAT. and to provide proof thereof to The Magistrate when requested to do so in order to enable The Magistrate at all times to transfer these charges to the other party and to clear the documents drawn up for this purpose.
5.1 Unless the parties have expressly agreed otherwise in writing, payment will be made prior to the delivery of the products. Any right to settlement by the other party is excluded.
5.2 If payment is not made on time, the other party is in default without a notice of default being necessary. Without prejudice to its other obligations, the other party owes interest of 1.5% interest per month from the due date of the invoice until the day of full payment on the outstanding amounts, whereby part of a month is calculated for a whole month. .
5.3 In the event of non-payment or late payment, all judicial, process and execution costs as well as administration costs and extrajudicial collection costs will be borne by the other party. The extrajudicial costs are fixed at a minimum of 15% of the relevant invoice amount and will amount to at least EUR 250 per claim.
5.4 The Magistrate is at all times entitled, upon or after entering into the agreement, before (further) performance, to require the other party to immediately provide (additional) payment security in a form to be determined by De Magistrate. If the other party fails to provide the required security (in a timely manner), De Magistrate is entitled, without prejudice to its other rights, to immediately suspend further performance of the agreement or to dissolve the agreement in whole or in part without notice of default or judicial intervention, without prejudice to its right to compensation for damage suffered by it. In addition, all that the other party owes De Magistrate for whatever reason is immediately due and payable.
5.5 Any objections to an invoice must be submitted to De Magistrate in writing, stating reasons, within 8 working days after the invoice date. After this period, complaints will no longer be processed and the other party will have processed its rights in this regard. Objections to the amount of the invoices submitted do not suspend the other party's payment obligation.
5.6 The Magistrate is entitled to suspend or postpone deliveries until all overdue invoices have been paid, or another explicit arrangement has been made with regard to payment of the outstanding or overdue balance.
6. Retention of Title
6.1. All products delivered to the other party remain the property of De Magistrate until full payment of all amounts, including any interest and costs, that the other party owes for the products delivered or to be delivered under any agreement and/or failure to comply with the performance of such agreement.
6.2. The other party is allowed to alienate the products within its normal business operations, on the understanding that, until the other party has paid for the products in full and has fulfilled its other obligations under similar agreements with De Magistrate, De Magistrate will assume the rights of the other party. towards its customers.The other party then transfers, insofar as necessary, these rights to De Magistrate, which transfer De Magistrate accepts. However, the other party is not permitted to alienate the products in the context of its normal business operations at the moment that the other party has applied for suspension of payment or the other party has been declared bankrupt.
6.3. If and as long as De Magistrate is the owner of the products, the other party will immediately inform De Magistrate when the products are (threatened to be) seized or otherwise claimed on the products. In addition, the other party will inform De Magistrate where the products owned by De Magistrate are located. In the event of attachment or (provisional) suspension of payment, the other party will immediately inform the seizing bailiff resp. point out to the administrator the (property) rights of De Magistrate. The other party guarantees that any seizure of the products will be lifted immediately.
6.4. Products subject to retention of title in favor of De Magistrate must always be kept separately by the other party from products of third parties and must be indicated or marked by the other party in such a way that the ownership of De Magistrate can be easily established at all times.
6.5. Products subject to a retention of title by De Magistrate must always be made available to De Magistrate upon first request to that effect.
6.6. If the same type of products are delivered on one or more unpaid invoices, the products present at the other party are deemed to have been delivered on the unpaid invoices.
7.1 Insofar as permitted under mandatory law, De Magistrate does not provide any guarantees with regard to the products to be delivered by it. The other party understands and accepts that the products supplied by De Magistrate are perishable natural products that have a limited shelf life.
7.2 The other party is obliged to check the delivered products, including the packaging, immediately after receipt for any immediately visible defects and/or damage and/or completeness. Complaints about immediately visible defects must be made within 1 working day after receipt of the products, with an accurate statement of the nature and grounds of the complaints. Complaints about defects that are not immediately observable must be made as soon as possible, but in any case within 5 working days after the time of discovery of a defect in the performance, or within 5 working days after the time at which the defect in the performance should have been discovered, must be reported in writing to De Magistrate, after which all rights of the other party with regard to the defect vis-à-vis De Magistrate will lapse.
7.3 Minor deviations and differences in quality and quantity or that are customary in the sector cannot constitute grounds for complaints. The Magistrate may deliver up to 10% less or more of the contracted quantity.
7.4 In the event of a complaint, the other party is obliged to keep the products about which he is complaining, stored separately, at the disposal of De Magistrate. The other party is also obliged to cooperate with any investigation by De Magistrate or a third party engaged by De Magistrate. If the complaint is upheld, the costs of the investigation will be borne by the Magistrate. If the claim is declared unfounded, the costs will be borne by the other party.
7.5 A complaint does not entitle the other party to fail to fulfill its (payment) obligations towards De Magistrate, or to invoke suspension or settlement.
7.6 Products may only be returned after prior written permission from the Magistrate, under conditions to be determined by De Magistrate. In the event of a return without permission from De Magistrate, shipping and storage of the products will be at the expense and risk of the other party.
7.7 If, in the opinion of De Magistrate, a complaint is rightly made and within the set advertising periods, De Magistrate is only obliged to deliver what is missing, to replace the delivered products, or to take back the products and to credit the other party for the relevant invoice amount. Under no circumstances is De Magistrate obliged to reimburse other costs and/or damage.
8. Liability and force majeure
8.1 Except in the event of intent or gross negligence on the part of De Magistrate and subject to legal liability based on mandatory provisions of law, De Magistrate is never liable for any damage suffered by the other party. Liability for indirect damage, consequential damage, immaterial damage, trading loss, lost profit or damage as a result of liability towards third parties is alsoexpressly excluded.
8.2 If and insofar as, despite the above, any liability rests on De Magistrate, for whatever reason, the liability of De Magistrate is limited to the order value of the products delivered that have led to the occurrence of the damage, on the understanding that De Magistrate Magistrate will be liable at most and exclusively up to an amount of EUR 10,000 per claim. A series of related damage-causing events counts as one event/claim for the purposes of this article.
8.3 Unless the damage is a direct result of gross negligence or intent on the part of De Magistrate, the other party will indemnify De Magistrate against all claims from third parties, directly or indirectly related to (the use of) the delivered products and will compensate De Magistrate for all damage. which The Magistrate suffers as a result of such claims.
8.4 Any claim for compensation lapses if it is not submitted to De Magistrate in writing within 1 year after delivery of the products.
8.5 The Magistrate is not liable for non-compliance or late fulfillment of an obligation arising from an agreement if this is caused by force majeure. Force majeure is in any case but not limited to strikes, obstructive government measures, transport difficulties, strikes, fire, machine breakdown, boycotts, sanctions, war or dangers of war and late delivery by suppliers and circumstances that are not at the expense and risk of De Magistrate.
8.6 If the force majeure situation has continued for more than 90 days, both De Magistrate and the other party have the right to terminate the agreement by dissolution. In that case, the other party is not entitled to any compensation.
9. Termination of the Agreement
9.1 The Magistrate can, without being obliged to pay any compensation, by registered letter with immediate effect and without judicial intervention, wholly or partially dissolve its agreement with the other party, if:
a) suspension of payment or the bankruptcy of the other party is requested or the bankruptcy of the other party is declared, or any part of its assets is seized;
b) the other party ceases its activities, ceases to pursue its statutory purpose, decides to liquidate, otherwise loses its legal personality, or transfers or merges its business;
c) the other party fails to fulfill one or more obligations arising from the agreement in question, or fails to do so on time or properly, and it has not remedied this failure within 14 calendar days after being warned to do so in writing by De Magistrate; d) The Magistrate ceases production or supply of the product in question. The provisions of this article are without prejudice to the other legal powers vested in De Magistrate in the event of failure to comply by the other party, such as those to claim performance and/or full compensation.
10. Intellectual Property Rights and Confidentiality
10.1 All rights in the products, including copyrights, trademark rights, patent rights and all other intellectual property rights, are vested in De Magistrate and/or its licensors.
10.2 All information provided by De Magistrate to the other party, including all information regarding the products and services of De Magistrate as well as documentation provided, is regarded as confidential information. The other party will provide this information at all times:
a) keep it strictly confidential and not disclose or disclose it to third parties unless the other party is obliged to do so by virtue of a court order or on the order of a supervisory authority;
b) use it only for the purpose for which the confidential information was provided.
11.1 Cancellation of an order by the other party is in principle not possible. If the other party nevertheless cancels an order in whole or in part, for whatever reason, it is obliged to reimburse De Magistrate for all costs reasonably incurred with a view to the execution of the order (including costs of preparation and the like), without prejudice to De Magistrate's right to compensation for loss of profit and other damage. Furthermore, the other party is obliged to reimburse the costs arising from the cancellation.
11.2 In the event of cancellation, the other party will also owe cancellation costs. These amount to 25% of the principal sum, plus VAT.
12.1 The other party undertakes to assist De Magistrate in the implementation of a possible product recall. In that context, the other party also undertakes to keep adequate files of its sales activities and customers for the traceability of the delivered products.or at least a period of 2 years after the date of sale. The files contain at least information about sales dates, sales numbers, lot numbers and lot specifications and all other information that may be necessary in the context of a possible product recall.
13. Choice of Law and Forum
13.1 These Terms and Conditions, the offers made by De Magistrate and the agreements concluded with De Magistrate and disputes arising therefrom are exclusively governed by Dutch law. The applicability of the Vienna Sales Convention is expressly excluded.
13.2 If the other party is established in the European Union, all disputes that may arise between De Magistrate and the other party will be submitted to a competent court in the Netherlands.
13.3 If the other party is established outside the European Union, all disputes that may arise between De Magistrate and the other party will be settled in accordance with the Arbitration Rules of the Netherlands Arbitration Institute. The arbitral tribunal shall consist of one arbitrator.
14. Other Provisions
14.1 Both The Magistrate and the other party will carefully comply with all obligations imposed on them under the applicable laws and regulations, and the parties will mutually indemnify each other against claims from third parties on that basis.
14.2 The Magistrate is entitled to amend these Conditions. Changes will also apply to agreements already concluded, from the time indicated by De Magistrate. The Magistrate will timely announce such changes in the manner it chooses, which in the case of minor changes may consist of publishing the amended terms and conditions on the website of The Magistrate. Only if the amendment of the conditions has far-reaching consequences for the rights and obligations of the parties, does the other party have the right to inform De Magistrate that it wishes to continue the agreement on the basis of the unchanged present Conditions instead of on the basis of the amended conditions.
14.3 The other party must pass on changes in name and/or address details of the other party to De Magistrate in a timely manner, and the other party is responsible for the correctness of the other party's details known to De Magistrate.