General conditions

These are the general terms and conditions of sale of IB-Solutions B.V., IB-Trade B.V. and IB-Lease B.V., trading under the name of IB Food-Machines (hereinafter referred to as “IB Food-Machines”). The full contact details of IB Food-Machines are as follows: De Meer 3 8321 MT Urk The Netherlands info@food-machines.com www.food-machines.com

Article 1. General

1. These general terms and conditions apply to all offers, quotations, agreements and services between IB-Solutions B.V. (KvK 68334843, also acting under the name Food Processing Urk) and IB-Trade B.V. (KvK 59698985) established in Urk, the Netherlands, all also acting under the name IB Food-Machines, hereinafter referred to as “Food-Machines“, and a Counterparty (including any follow-up order, modified or additional order), insofar as these terms and conditions have not been expressly deviated from by the parties in writing.
2. Other Party is any natural or legal person who purchases, buys, or with whom Food-Machines negotiates the formation of an agreement.
3. These general terms and conditions also apply to agreements with Food-Machines, for the execution of which third parties are engaged by Food-Machines.
4. The applicability of any purchasing or other conditions of the Other Party is expressly rejected.
5. If one or more provisions of these general terms and conditions at any time are wholly or partially void or voidable, then the other provisions of these general terms and conditions will remain fully applicable. Food-Machines and the Other Party shall at such time consult to agree on new provisions to replace the void or voided provisions, taking into account as much as possible the purpose and intent of the original provisions.

Article 2. Quotations and offers

1. All quotations and offers of Food-Machines are without obligation, unless the quotation or offer specifies a deadline for acceptance.
2. The prices quoted are always exclusive of sales tax and other government levies, and exclusive of costs of packaging, transportation, insurance and installation, unless expressly stated otherwise.
3. If the acceptance (whether or not on minor points) differs from the offer included in the quotation or the offer, Food-Machines is not bound by it.

Article 3. Sizes, weights, illustrations, technical specifications

1. Food-Machines is permitted to deviate from provided sizes, weights, (technical) specifications and the like, to the extent such deviation is of minor significance.
2. Images, sizes, weights, and (technical) specifications included on the website, in price lists and in brochures are not binding.
3. Drawings, diagrams and illustrations provided by Food-Machines are for clarification purposes only.

Article 4. Contract term, execution period, performance, modification of agreement, price increase

1. The agreement between Food-Machines and the Other Party is entered into for an indefinite period of time, unless the nature of the agreement dictates otherwise or if the parties expressly agree otherwise in writing.
2. Delivery dates can only be approximate. If for the delivery of certain goods a term has been agreed upon or given, this is never a fatal term. If a term is exceeded, the Other Party must first give Food-Machines written notice of default. Food-Machines must thereby be offered a reasonable period of time to still perform the agreement.
3. Food-Machines is entitled to deliver an order in its entirety or in parts.
4. Food-Machines has the right to have certain work performed by third parties. The applicability of article 7:404, 7:407 paragraph 2 and 7:409 BW is expressly excluded.
5. Food-Machines is entitled to execute the agreement in several stages, and to invoice the part thus executed separately.
6. If the agreement is executed in phases, Food-Machines may suspend the execution of those parts belonging to a subsequent phase until the Other Party has approved in writing the results of the preceding phase.
7. The Other Party shall ensure that all data which Food-Machines indicates to be necessary, or which the Other Party should reasonably understand to be necessary for the execution of the agreement, shall be provided to Food-Machines in good time. If the information required for the execution of the agreement is not provided to Food-Machines in a timely manner, Food-Machines has the right to suspend the execution of the agreement and/or to charge the Other Party for the extra costs resulting from the delay according to the then customary rates. The execution period shall not commence earlier than after the Other Party has made the information available to Food-Machines.
8. If during the execution of the agreement it appears that for a proper execution thereof it is necessary to modify or supplement it, then parties will timely and in mutual consultation proceed to written adjustment of the agreement. This may also increase or decrease the originally agreed amount. Food-Machines will give as much advance notice as possible. An amendment to the agreement may also change the originally specified period of execution. The Other Party accepts the aforementioned possibility of modification of the agreement, including the change in price and term of execution.
9. If the agreement is amended, including a supplement, Food-Machines has the right to execute the agreement only after the Other Party has agreed in writing to the price and other conditions specified for the execution, including the time of execution. Not or not immediately carrying out the amended agreement does not constitute a failure by Food-Machines and is no ground for the Other Party to terminate or cancel the agreement.
10. If the Other Party should be in default in the proper fulfillment of that to which it is bound towards Food-Machines, then the Other Party shall be liable for all damages on the part of Food-Machines caused directly or indirectly as a result.
11. Food-Machines has the right to increase the agreed price if one or more of the following circumstances occurs after the conclusion of the agreement: price increases, price increases at suppliers, increase of shipping or transport costs, introduction of new and/or increase of existing government levies, import and export duties or other levies and/or taxes at home and abroad, or, in general, such circumstances that are similar to the above. If such a circumstance occurs, Food-Machines is entitled to increase the agreed price in proportion to the said increase.

Article 5. Transfer of risk, delivery, delivery period

1. The risk of the items to be delivered by Food-Machines is transferred to the Other Party at the moment of delivery, i.e. the receipt of the items at the address specified by the Other Party.
2. The carrier’s report shall serve as full proof of delivery to the Other Party.
3. In case of refusal of delivery by the Other Party, all related costs (including return freight and storage costs) shall be borne by the Other Party.
4. The costs of transportation and insurance during transportation shall, unless expressly agreed otherwise, be borne by the Other Party.
5. The Other Party is obliged to take out all necessary, usual and/or desirable insurances with respect to the goods to be delivered respectively delivered, in any case from the moment of delivery as referred to in Article 5.1.

Article 6. Installation, training, testing

1. The Other Party shall install the items delivered by Food-Machines at its own expense and risk.
2. With respect to the items delivered, the Other Party is responsible for the training and instruction of employees.
3. Goods supplied by Food-Machines as part of a test period shall be the sole responsibility of the Other Party during such test period.
4. After completion of the test period, the Other Party shall, at its expense, ensure that the items in question are returned to Food-Machines in good and clean condition and at the expense of the Other Party.

Article 7. Suspension, dissolution and early termination of the agreement

1. Food-Machines is authorized to suspend the fulfillment of the obligations or to dissolve the agreement immediately and with immediate effect if the Other Party does not, not fully, or not in a timely manner fulfill the obligations under the agreement, or if due to delay on the part of the Other Party it can no longer be required of Food-Machines to fulfill the agreement against the originally agreed conditions.
2. Furthermore, Food-Machines is authorized to dissolve the agreement if circumstances arise of such a nature that fulfillment of the agreement is impossible, or if circumstances arise of such a nature that unaltered maintenance of the agreement cannot reasonably be required of Food-Machines.
3. If the agreement is dissolved, the claims of Food-Machines against the Other Party shall be immediately due and payable. If Food-Machines suspends the fulfillment of its obligations, it shall retain its claims under the law and the agreement.
4. If Food-Machines proceeds to suspension or dissolution, it shall in no way be liable for compensation for damages and costs incurred as a result.
5. In case of liquidation, of (application for) suspension of payment or bankruptcy, of seizure – if and insofar as the seizure has not been lifted within three months – at the expense of the Other Party, or of debt restructuring, Food-Machines is free to terminate the agreement immediately and with immediate effect, or to cancel the order or agreement, without any obligation on its part to pay damages or compensation. The claims of Food-Machines against the Other Party shall in that case be immediately due and payable.
6. If the Other Party fully or partially cancels an order that has been placed, the work that has been performed and the items ordered or prepared for it, plus any supply and delivery costs thereof, and the labor time reserved for the execution of the agreement, will be charged in full to the Other Party.

Article 8. Force Majeure

1. Food-Machines is not obliged to fulfill any obligation to the Other Party if it is hindered to do so as a result of a circumstance that is not due to fault, and neither by virtue of the law, a legal act or generally accepted practice.
2. In these general terms and conditions, force majeure is defined, in addition to what is stated in the law and jurisprudence, as all external causes, foreseen or unforeseen, on which Food-Machines has no influence, but which prevent Food-Machines from fulfilling its obligations. This includes strikes at the company of Food-Machines or third parties.
3. Food-Machines may suspend the obligations under the agreement during the period of force majeure. If this period lasts longer than three months, then each of the parties is entitled to dissolve the agreement immediately and with immediate effect, without any obligation to pay damages to the other party.
4. Insofar as Food-Machines at the time of the occurrence of force majeure has already partially fulfilled its obligations under the agreement, Food-Machines is entitled to separately invoice the part already fulfilled. The Other Party is obliged to pay this invoice as if it were a separate agreement.

Article 9. Payment and collection costs

1. Payment shall always be made within 14 days of the invoice date, in a manner to be indicated by Food-Machines. Food-Machines is always entitled to invoice periodically or by means of (partial) prepayment.
2. If the Other Party fails to pay an invoice on time, the Other Party shall be in default by operation of law. In that case the Other Party shall owe interest of 10% per year, unless the legal interest rate is higher, in which case the legal interest rate shall be payable. The interest on the amount due will be calculated from the moment the Other Party is in default until the moment of payment of the full amount due.
3. Food-Machines has the right to have the payments made by the Other Party go first of all to reduce the costs, then to reduce the interest that has fallen due, and finally to reduce the principal sum and the current interest.
4. The Other Party shall not be entitled to offset the amount owed by it to Food-Machines.
5. If the Other Party is in default in the (timely) fulfillment of its obligations, then all reasonable costs for obtaining satisfaction out of court shall be borne by the Other Party. The default of the Counterparty who is a natural person not acting in the exercise of a profession or business (private Counterparty) shall commence after a demand for payment has been made within fourteen days of the date of the demand and payment has not been made. The reminder shall also indicate the consequences of the failure to pay. The extrajudicial costs will be calculated on the basis of what is customary in Dutch collection practice. If Food-Machines has incurred higher costs for collection that were reasonably necessary, and the Other Party is not a natural person (business Other Party), the actual costs incurred are eligible for reimbursement. Any judicial and execution costs incurred will also be recovered from the Other Party. The Other Party shall also owe interest on the collection costs due.

Article 10. Security, retention of title

1. Food-Machines is entitled before delivering, proceeding with delivery, or (otherwise) starting the execution of the agreement, to stipulate sufficient security for the punctual fulfillment of the payment obligations of the Other Party.
2. If the Other Party fails to provide the requested security, Food-Machines has the right to dissolve the agreement, without prejudice to its right to compensation for any damages suffered by it, and without any obligation to compensate the Other Party for any damages.
3. All goods delivered and to be delivered by, on behalf of or at the risk of Food-Machines under any agreement whatsoever, remain the inalienable property of Food-Machines until all claims relating to the consideration for goods delivered or to be delivered by Food-Machines under the terms of an agreement, and work performed or to be performed on behalf of the Other Party under such an agreement, as well as claims due to failure to comply with such agreements, including claims relating to fines, interest and costs, have been paid by the Other Party.
4. The Other Party has, as long as it is not in default with regard to the fulfillment of any agreement with Food-Machines, the right to use the delivered goods as is customary in its business. When the property right of Food-Machines is destroyed by conversion, mixing, accession or in any other way, the Other Party shall transfer to Food-Machines now for then the (joint) ownership of the new item thus created in proportion to the invoice value. The Other Party will then act free of charge as holder and custodian of the item in question of which Food-Machines has the (co-)ownership.
5. If the Other Party is in default, Food-Machines is authorized to demand the items delivered under retention of title immediately from anyone holding them.
6. The Other Party is obliged to keep the items delivered by Food-Machines under retention of title with due care and as the recognizable property of Food-Machines, to maintain the identifying features and packaging materials of the items unchanged, and to adequately insure the items against fire, explosion and water damage, machine breakage (business damage) and theft.

Article 11. Warranties, investigations and complaints, limitation period

1. The items to be delivered by Food-Machines meet the usual requirements and standards that can reasonably be made of them at the moment of delivery and for which they are intended in case of normal use in The Netherlands. In case of use outside the Netherlands, the Other Party should verify itself whether the use is suitable for use outside the Netherlands and whether the items to be delivered meet the conditions set there. Food-Machines may in that case set other (guarantee) conditions with regard to the goods to be delivered or activities to be performed.
2. The guarantee mentioned in paragraph 1 of this article is valid for a period of 12 months after delivery, unless the nature of the delivered item dictates otherwise or the parties have agreed otherwise. If the guarantee provided by Food-Machines concerns a good produced by a third party, the guarantee is limited to the guarantee provided by the producer of that good. The aforementioned warranty always excludes wear and tear and defects caused by the normal use of the rented item.
3. When the Other Party purchases used items (second hand) from Food-Machines, no warranties are provided by Food-Machines
4. Any form of guarantee shall lapse if a defect has arisen as a result of or arising from injudicious or improper use thereof, improper storage or maintenance thereof by the Other Party and/or third parties, when the Other Party or third parties have made changes or attempted to make changes to the item, or if it has been processed or treated in a manner other than prescribed.
5. The Other Party is obliged to examine the items delivered at the time that the items are made available to it or the work in question has been carried out respectively. The Other Party must examine whether the quality and/or quantity of the items delivered corresponds to what has been agreed.
6. Any defects must be reported to Food-Machines in writing immediately, and in any event no later than two working days after their discovery. If a defect is reported later, the Other Party is no longer entitled to repair, replacement or compensation.
7. The report must contain as detailed a description as possible of the defect, so that Food-Machines is able to respond adequately. The Other Party must give Food-Machines the opportunity to investigate (or have investigated) a complaint.
8. The performance of Food-Machines shall in any case be deemed sound if the Other Party has put the delivered goods, or a part of the delivered goods, into use, has treated or processed them, has delivered them to third parties, or has had them put into use, has had them treated or processed, or has had them delivered to third parties, unless the Other Party has observed the provisions of the fifth and sixth paragraphs of this article.
9. If the Other Party complains in a timely manner, this does not suspend its payment obligation. The Other Party in that case also remains obliged to take delivery of and pay for the other items ordered and that which he has ordered Food-Machines to do.
10. If it is established that a product is defective and a complaint has been made in a timely manner, Food-Machines will within a reasonable period of time replace the previous defective product and/or service with a new product and/or service, or take care of repairing it, or pay a substitute compensation to the other party. The fulfillment of the agreement is then deemed to be completely sound and the agreement cannot be dissolved by the Other Party in that case.
11. In case of replacement, the Counterparty is obliged to return the replaced item to Food-Machines and transfer ownership of it to Food-Machines.
12. If it is established that a complaint is unfounded, the costs incurred as a result, including the research costs on the part of Food-Machines, will be integrally borne by the Other Party.
13. After expiration of the warranty period, all costs for repair or replacement, including administration, shipping and travel costs, will be charged to the Other Party.
14. Notwithstanding the statutory limitation periods, the limitation period for all claims and defenses against Food-Machines and the third parties engaged by Food-Machines in the performance of an agreement is one year

Article 12. Liable

1. Food-Machines is not liable for damages, of any nature whatsoever, arising because Food-Machines has relied on incorrect and/or incomplete information provided by or on behalf of the Other Party.
2. Should Food-Machines be liable for damages, Food-Machines’ liability shall be limited to a maximum of the invoice value of the order, at least to that part of the order to which the liability relates.
3. The liability of Food-Machines is in any case always limited to the amount of the payment of its insurer.
4. Food-Machines shall only be liable for direct damages.
5. The limitations of liability contained in this article do not apply if the damage is due to intent or gross negligence on the part of Food-Machines

Article 13. Indemnification

1. The Other Party indemnifies Food-Machines against any claims by third parties who suffer damage in connection with the execution of the agreement, the cause of which is attributable to others than Food-Machines. If Food-Machines should on that account be held liable by third parties, the Other Party is obliged to assist Food-Machines both extra-judicially and judicially and to immediately do everything that may be expected of him in that case.

Article 14. Intellectual property

1. Food-Machines has the right to use all materials developed by it and the knowledge gained by the execution of the agreement on its side, also for other purposes, as long as no strictly confidential information of the Other Party is brought to the knowledge of third parties.
2. All intellectual property rights arising from the agreement, including copyright and design rights, shall belong to Food-Machines, unless otherwise agreed in writing by the parties.
3. Unless the work does not lend itself to it, Food-Machines shall at all times be entitled to mention (or have mentioned) or remove (or have removed) its name on or near the work.
4. The Other Party must respect the intellectual property rights of third parties and indemnifies Food-Machines in this respect for any claims of third parties. Investigation into the existence of such rights is not part of any agreement that Food-Machines concludes with its Counterparty.

Article 15. Applicable law and disputes.

1. All legal relationships to which Food-Machines is a party are exclusively governed by Dutch law, even if an obligation is fully or partially executed abroad, or if the party involved in the legal relationship is domiciled there.
2. The court in the place of business of Food-Machines has exclusive jurisdiction to take cognizance of disputes, unless the law imperatively prescribes otherwise.
3. The Vienna Sales Convention (CISG) of April 11, 1980 (Trb. 1986,61) shall not apply and is hereby expressly excluded.

Article 16. Version of general terms and conditions

1. Applicable is always the version of the general terms and conditions as applicable at the time of the conclusion of the legal relationship with Food-Machines.
2. The Dutch text of the general terms and conditions is always decisive for their interpretation.