SALES TERMS AND CONDITIONS BRAND MASTERS

Article 1 – Definitions

The terms capitalised in this article shall have the following meaning in these Terms and Conditions:

Brand Masters                                 The private company Brand Masters B.V., having its registered office in (3906 AA) Oosterhout at Innovatiepark 8 and registered in the register of the Chamber of Commerce under number 54094127, as well as its related companies that refer to or use the said General Terms and Conditions.

Buyer                                                 Each and every party to whom Brand Masters makes a proposal / an Offer and/or with whom Brand Masters concludes an agreement or places an Order for the delivery of Products or Services.

Consumer                                         A natural person, not acting in the course of a business or profession, who purchases or utilises the Product for personal use.

Delivery                                             The Products or Services to be delivered by Brand Masters in conformity with the stipulated Specifications at the time indicated by Brand Masters.

Offer                                                   A non-binding proposal of Brand Masters to the Buyer for the delivery of Products or Services, whether or not under the scope of a Partnership Agreement.

Order                                                 The contract of the Buyer awarded to Brand Masters for the delivery of Products and/or Services, whether or not under the scope of a Partnership Agreement.

Order Confirmation                        The confirmation of the Order placed by the Buyer sent to the Buyer by Brand Masters.

Order Form                                       The standard form used by Brand Masters for the placing of an Order.

Parties                                               Brand Masters and the Buyer.

Partnership Agreement                  The framework agreement concluded by and between the Parties for the sale of Products.

Producer                                            The supplier of Brand Master who produces the Products.

Products                                            The goods that Brand Masters delivers to the Buyer.

Recall                                                 Calling back Products.

Services                                             Activities that are part of the Order.

Terms and Conditions                     These General Sales Terms and Conditions of Brand Masters.

Working Days                                   Days with the exception of Saturdays, Sunday and national public holidays.

Article 2 – Applicability

1.   These Terms and Conditions are applicable to any and all Offers, requests, proposals, Orders and agreements (Partnership Agreements) for a Delivery between Brand Masters and the Buyer, to the extent not expressly stipulated otherwise in writing.

2.   If the Buyer does, at any time, refer to its own general (purchasing) terms and conditions then the relevant applicability is expressly rejected. The Buyer agrees with the applicability of these Terms and Conditions to later Orders and agreements by and between Brand Masters and the Buyer.

3.   The messages mentioned in these Terms and Conditions can be sent, unless indicated otherwise or the written form applies by law, in writing as well as by email and facsimile.

Article 3 – Conclusion of agreements

1.   Any and all proposals and Offers of Brand Masters are subject to contract, unless the proposal expressly indicates otherwise and a term for acceptance is mentioned. Proposals or Offers are not automatically applicable to future Orders.

2.   Manifest errors or mistakes on its website, in folders, publications and other data shall not have binding effect on Brand Masters.

3.   An agreement is exclusively concluded after the despatch of an Order Confirmation by Brand Masters or if, after the award of the Order by the Buyer, Brand Masters starts implementing the Order.

4. Brand Masters is entitled not to accept an Order or to exclusively accept it on the condition that shipment takes place cash on delivery or after payment in advance.

5. Brand Masters may require additional security from the Buyer for compliance with its obligations.

6. From the moment that an Order is accepted by Brand Masters the Buyer can no longer cancel the Order, barring with written consent of Brand Masters.

Article 4 – Changes

1.   Changes in the Order and deviations from these Terms and Conditions shall only have effect if they were stipulated in writing by and between Brand Masters and the Buyer.

2.   If changes lead to an increase or decrease of the costs then Brand Masters shall pass this price difference on to the Buyer and charge this amount in conformity with the provisions set forth in these Terms and Conditions.

3.   Brand Masters is entitled to cancel an Order – also if it has already been accepted by Brand Masters – within five working days after the Order Confirmation, where in the latter instance an agreement is not concluded by and between the Parties. In case of cancellation Brand Masters shall by no means be liable to pay any compensation to the Buyer.

4.   Brand Masters reserves the right to change an Order by means of a written notice of the change to the Buyer, provided that the change is notified 20 days prior to Delivery.

 

Article 5 – Prices

1.   The stipulated prices are exclusive of VAT. They are fixed unless the Order Confirmation refers to the circumstances that can lead to an adjustment of the price and determines in what manner the adjustment takes place.

2.   The purchase price can be established in euros or in foreign currency. If the purchase price is in foreign currency then the price in the said foreign currency shall upon payment of Brand Masters correspond with the price in euros as applicable at the time of the Order Confirmation.

3.   Unless stipulated otherwise, the prices are basically exclusive of potential costs and duties, e.g. transport charge up to the place of destination, costs of delivery and insurance, currency exchange risk, import duties and packaging.

4.   If an offer is made on the basis of subsequent calculation then the offered prices are merely target prices.

5.   A composite quotation shall not compel Brand Masters to perform a part of the Order at a corresponding part of the quoted price.

6.   If the Supplier of Brand Masters increases its prices then Brand Masters shall be entitled to increase the price stipulated with the Buyer accordingly.

Article 6 – Resale

1.   Brand Masters can advise on a retail price. This expressly regards a recommended price. Brand Masters shall never be responsible and/or liable for the pricing of the recommended retail price.

2.   The Buyer is personally responsible for the application and establishment of the correct VAT rate. Brand Masters shall not be responsible and/or liable for the VAT rate applied by the Buyer.

Article 7 – Delivery

1.   Brand Masters delivers the Products in conformity with the manner of delivery stipulated by and between Brand Masters and the Buyer as determined in the latest edition of the Incoterms. If nothing was stipulated by and between the Parties then delivery must take place Free Carrier (FCA) where delivery takes place from the warehouse of Brand Masters. Upon Delivery the Buyer must sign for receipt, failing which the right of the Buyer to submit a complaint to Brand Masters expires.

2.   Brand Masters reserves the right to deliver and invoice the Order in instalments.

3.   Upon Delivery the Buyer is held to take delivery of the Products. If the Buyer does not take delivery of the Products to be delivered by Brand Masters then the Products are stored at the risk and expense of the Buyer. If the Buyer did not pick up the Products, despite a demand of Brand Masters, within 14 days and at its sole expense then Brand Masters shall be entitled to sell the goods to third parties and to hold the Buyer liable for a potential loss. The Buyer is always held to at least compensate Brand Masters for the costs of the aforementioned storage and the additional shipping and administration costs incurred by Brand Masters.

4.   The brands as well as the type or identification numbers or signs that were placed on the Products delivered to the Buyer by Brand Masters, including the packaging, cannot be removed, damaged or changed.

Article 8 – Delivery period

1.   The delivery date is indicative and does not regard a fatal deadline. This shall only be different if the Parties expressly stipulate this in writing.

2.   In conformity with Section 39 of Book 6 of the Dutch Civil Code, Brand Masters shall be free to deliver Products earlier than the indicated delivery date. Brand Masters reserves the right to reject the proposal of the Buyer to deliver on a date other than the stipulated date.

3.   In case of a deviation from the delivery date Brand Masters shall only be in default after the Buyer has given Brand Masters written notice of default and offered a period equal to at least the delivery period, with a maximum of one month, to yet deliver the Products and Brand Masters has not delivered after the expiry of the said period.

Article 9 – Reservation of title

1.   From the Delivery the Products shall be at the risk of the Buyer, the Products do, however, remain the property of Brand Masters until the Buyer has paid the invoices of:

(i)      any and all amounts payable with regard to the delivered and the yet to be delivered Products and Services; and

(ii)     any and all other amounts that are or shall be payable to Brand Masters or to persons related to Brand Masters.

2.   As long as the title of the Products has not transferred to the Buyer, the Buyer shall merely be the holder of the Products and the Buyer is only allowed to sell the Products to third parties and transfer the title in the context of its normal business operations. The Buyer is held to store the Products, as long as they have not become its property, without any expenses on the part of Brand Masters, in a separate and identifiable manner from the other Products in its possession and not destroy, damage or obscure an identification reference or packaging on or with regard to the Products (including serial numbers and notifications that a patent, trade name, design or copyright with regard to the Products is vested in Brand Masters or a third party).

3.   The consequences of the reservation of title under property law of a Product meant to be exported are governed by the laws of the country of destination if the said laws contain more favourable provisions for Brand Masters.

4.   If the Buyer does not comply with its payment obligations then Brand Masters shall be entitled to remove or have removed the Products subject to reservation of title from the Buyer or a third party who holds the Products for the Buyer. The Buyer is held to lend full cooperation or have full cooperation lent in this.

Article 10 – Packaging

1.            To the extent that the Parties do not stipulate otherwise, the Buyer is held to return the packaging as soon as possible and at the latest with the first following delivery of Products of Brand Masters, sorted and clean. If a subsequent delivery is out of the question then the Buyer is held to return the packaging immediately. The costs for the return are at the expense of the Buyer.

2. If the Buyer must return the packaging and Brand Masters observes that the Buyer does not return the packaging or returns it damaged then Brand Masters shall charge the costs of the said packaging to the Buyer.

Article 11 – Liability

1.   Brand Masters shall only be liable for damages that are the direct and immediate result of a shortcoming in the performance of the Order or the implementation of the agreement imputable to the same.

2.   The total liability of Brand Masters on account of an imputable failure to comply with the Order or the agreement, an unlawful act and/or any foundation whatsoever shall be limited to compensation for an amount that equals the damages directly incurred and/or to be incurred by the Buyer, the latter with a maximum of at most the purchase price of the relevant Product (excluding VAT). In no instance whatsoever shall the total compensation for damages exceed the amount that is, as the occasion arises, paid pursuant to the liability insurance of Brand Masters.

3.   Direct damages are exclusively understood as the reasonable costs that the Buyer would need to incur to have the performance of Brand Masters comply with the agreement.

4.   Liability of Brand Masters for indirect damages, consequential damages, lost profit, lost savings, reduced goodwill, losses due to business interruptions, damages related to the reliance on third parties by the Buyer and any and all other forms of damages other than those mentioned in paragraph 3, on any account whatsoever, is excluded.

5.   The limitations as intended in this article shall expire if and to the extent that the damages are the result of intent or intentional recklessness on the part of Brand Masters.

6.   Brand Masters is, in consideration of the provisions set forth in these Terms and Conditions, only liable to pay damages if the Buyer complied with the stipulated rules and periods. Each and every claim of the Buyer vis-à-vis Brand Masters expires if the relevant Products were transported, treated, used, processed or stored by or on behalf of the Buyer improperly or in violation with the instructions given by or on behalf of Brand Masters.

7.   The provisions set forth in this article are also applicable to any and all (legal) persons that Brand Masters relies on for the performance of the Order.

8.   The Buyer indemnifies Brand Masters against any and all claims of third parties on account of damages incurred by third parties deriving from the (performance of the) Order between Brand Masters and the Buyer, unless and to the extent that there is question of circumstances that must be allocated to Brand Masters.

Article 12 – Complaints

1.   Within 48 hours after Delivery of the Products and prior to their resale, the Buyer shall inspect the Products and ascertain itself of the fact that the Products comply with the stipulated Specifications. Complaints with regard to the delivered Products and/or the invoice amount must be communicated to Brand Masters in writing with an accurate indication of the nature of the complaints within 48 hours after the date of receipt of the Products and/or the invoice in respect of which the Buyer complains or within 48 hours after the discovery of the alleged defect if the Buyer demonstrates that it could reasonably not have detected the defect earlier.

2.   If the complaint is not submitted in a timely fashion then any and all rights of the Buyer in connection with the complaint shall expire.

3.   Brand Masters must be given the opportunity to examine the complaint of the Buyer.

4.   In case of a justly submitted complaint Brand Masters can opt between adjustment of the price charged, the – where possible – new delivery of the rejected Products free or charge or fully or partly not (no longer) performing the Order upon a refund in proportion to the price paid by the Buyer.

5.   Brand Masters can only be addressed in court up to at the latest 6 months after Delivery. Each and every claim for compensation vis-à-vis Brand Masters does, in any case, expire through the mere expiry of 6 months after the occurrence of the said claim.

 

Article 13 – Recall

1.   Brand Masters and the Buyer bear a joint responsibility to in case of a Recall – whether or not by order of the competent (official) authorities in the area of foodstuffs – call back the relevant Products from the Consumer or somewhere else in the chain in an adequate and efficient manner.

2.   In the situation where Brand Masters or its Supplier takes measures in connection with the Recall of a Product, the Buyer shall forthwith be informed and the Buyer shall lend its cooperation in order to have the Recall proceed as properly and smoothly as possible.

3.   The Buyer indemnifies Brand Masters against any and all damages that it shall incur as a result of this kind of Recall.

Article 14 – Compliance

1.   In case the Buyer does not comply or not in a timely fashion or not properly then the Supplier shall, due to the mere failure to comply with its obligations, be in default, without Brand Masters being held to give notice of default.

2.   Brand Masters is entitled to suspend the performance of all its obligations vis-à-vis the Buyer, hence including the obligations that are not related to the obligation that the Buyer is not complying with, by means of a written notice and with immediate effect, to require sufficient security or to terminate the Order or the agreement, either in whole or in part, with immediate effect, always whilst preserving all its rights in terms of compensation for damages and costs, if:

  1. the Buyer does not comply with one or more of its obligations or if it is an established fact that compliance without shortcoming shall be impossible;
  2. the Buyer is guilty of serious misconduct or committed an unlawful act due to negligence or intent;
  3. the Buyer acts in violation of the Code of Conduct of Brand Masters, as available via link website;
  4. the Buyer inflicts damages on the interests or the reputation of Brand Masters;
  5. the Buyer offers or supplies a benefit to an employee of Brand Masters in connection with the conclusion or performance or implementation of an Order or agreement;
  6. a winding-up petition is filed in respect of the Buyer, (provisional) suspension of payment is requested for the Buyer, the business of the Buyer is discontinued or terminated or the Buyer otherwise appears to be insolvable; or
  7. at the discretion of Brand Masters, far-reaching changes occur in the direct or indirect ownership or control relationships at the Buyer.

3.   If termination took place in conformity with the previous provisions then the Buyer shall not be entitled to any compensation pursuant to the said termination vis-à-vis Brand Masters.

4.   Through termination pursuant to the provisions set forth in this article, any and all claims of Brand Masters vis-à-vis the Buyer immediately fall due. As the occasion arises, the Buyer shall moreover be liable to compensate Brand Masters for the damages incurred by the same.

 

Article 15 – Force majeure

1.   Without prejudice to the provisions set forth in Section 75 of Book 6 of the Dutch Civil Code, force majeure is qualified as each and every circumstance that prevents Brand Masters from complying with the obligations on account of the Order (e.g. weather conditions, official measures, fire, accidents, industrial conflicts, stagnation in the controlled course of affairs within the business of Brand Masters and the partial non-compliance, on any ground whatsoever, by third parties and suppliers relied on by the Buyer and Brand Masters) and that can reasonably not be blamed on Brand Masters.

2.   If Brand Masters is prevented from complying with the Order as a result of force majeure then it is entitled to, without any obligation, pay compensation and without prejudice to the other rights vested in the same, suspend the performance of the Order during the period of force majeure or to cancel the Order by means of a written notice. In case of full or partial cancellation of the Order, Brand Masters shall not be held to pay any compensation.

3.   If Brand Masters, upon the occurrence of the force majeure, has already partly complied with its obligations, or can consequently only partly comply with its obligations, then it is entitled to invoice the already performed, or performable, part of the Order or Agreement separately, where the performed / performable activities are charged as if they were activities that are performed on the basis of an independent Order or Agreement.

 

Article 16 – Payment

1.   The Buyer must pay the stipulated price within 30 days after invoicing without being entitled to settlement or suspension. The said payment obligation applies in full in the event that the Buyer relies on its right to complain.

2.   Brand Masters reserves the right to require full or partial payment in advance of the invoice amount from the Buyer. As the occasion arises, Brand Masters shall only proceed with Delivery when the invoice has been paid.

3.   Brand Masters is entitled to require a down payment or other form of security from the Buyer for correct compliance by the Buyer with its obligations.

4.   If payment fails to materialise on the due date then the Buyer shall immediately be in default, without any further demand or notice of default of Brand Masters being required. If the Buyer does not pay in a timely fashion then the Buyer shall be liable to pay Brand Masters a contractual interest rate of 10% per annum or – should this be higher – the statutory commercial interest rate as intended in Section 119a of Book 6 of the Dutch Civil Code.

5. Payments effectuated by the Buyer are always first applied to the claims that Brand Masters may have vis-à-vis the Buyer in respect of which Brand Masters did not reserve the title, then to any and all payable interest and costs and finally to claimable invoices that have been outstanding for the longest period of time, all even if the Buyer specified that the payment is related to a certain claim or invoice.

 

Article 17 – Intellectual Property

1.   If trademark, model, copyrights, domains or other intellectual property rights are associated with Products and Services delivered to the Buyer then the said rights exclusively belong to Brand Masters, even if the Products were specifically designed, developed or produced for the Buyer, unless:

(i)         the said rights belong to a third party;

(ii)        it was in advance expressly determined in writing that and what rights belong to the Buyer.

2.   If the rights as intended in paragraph 1 belong to Brand Masters then the Buyer is, unless expressly stipulated otherwise in writing, solely entitled to use the said intellectual property rights in accordance with the relevantly provided instructions and exclusively in connection with the Products and Services to which the said rights are related. The Buyer is, barring prior written consent, not allowed to use the trademarks and (trade) names as (part of) its own trademarks, (trade) names or domain names. The Buyer is, barring different written agreement, neither allowed to use other names or identification signs for the Products and Services delivered by Brand Masters and/or to change the packaging or to use different packaging.

3.   If Products and/or Services are delivered by Brand Masters in the context of a sustainable relationship then it is noted that during and after termination of the partnership with the Buyer, unless stipulated otherwise in writing, it is not allowed to use trademarks and (trade) names identical to the trademarks and trade names of Brand Masters – or resulting in confusion with the same – for products and/or services that compete with those of Brand Masters. In case of termination of the sustainable relationship, regardless of the cause, the rights of Brand Masters, but not those of the Buyer, as laid down in this article, remain in full force and effect. As the occasion arises, the Buyer is, with immediate effect, no longer allowed to use the intellectual property rights of Brand Masters and the Buyer shall submit any and all marketing materials in which the trademarks and/or (trade) names are depicted / mentioned to Brand Masters or, at the discretion of Brand Masters, destroy the same.

4.   If the Buyer is involved in a claim instituted by a third party with regard to the intellectual property rights of Brand Masters, or this threatens to happen, then the Buyer shall:

(i)      immediately, and in any case no later than 7 days after the day that the Buyer has become familiar with the claim or imminent claim, inform Brand Masters accordingly in writing and in this respect explain the nature of the claim or imminent claim in detail including, but not limited to, copies of any and all relevant correspondence received by the Buyer;

(ii)     take such action that Brand Masters may reasonably request in writing in order to prevent, dispute, rebut or put forward a defence against the claim or imminent claim;

(iii)    not agree with, or accept, any compromise or settlement or acknowledge or pay any liability with regard to the claim or imminent claim without the prior written consent of Brand Masters; and

(iv)    notwithstanding the above, after a written notice of Brand Masters, grant Brand Masters the exclusive authority to, at the expense of Brand Masters, prevent, dispute, rebut and/or put forward a defence against the claim or imminent claim. Brand Masters always remains authorised to delegate the handling of these kinds of cases to a lawyer designated by the same for this purpose and the Buyer shall supply any and all information and lend any and all cooperation requested by Brand Masters.

5.   In case of a violation of the provisions set forth in this article, the Buyer forfeits an immediately claimable contractual penalty of € 10,000.00 per violation plus € 1,000.00 per day that a violation continues and Brand Masters shall moreover be entitled to rescind a potential Partnership Agreement with immediate effect.

 

Article 18 – Confidential information

1.   The Parties shall exclusively use information received from each other for the performance of the Order and/or the implementation of the agreement. The said information remains the property of the party who supplied the information and must on demand of the said party, to the extent that it is in written form, be returned to the same, as well as copies made of the same.

2.   The Parties are held to observe confidentiality in respect of any and all information and data that were disclosed when placing the Order and/or when implementing the Agreement, barring statutory obligations and/or to the extent that the said information and data are available in the public domain. Information that falls under statutory obligations is exempted from this with the understanding that the party on whom the said obligation is imposed shall inform the other party in a timely fashion of the imminent notification requirement with a clear description of the subject so that the other party, whose information shall be disclosed, has enough time to submit an application to the court in order to oppose this. The onus of proof that the information had already been available in the public domain and was not disclosed through an action of the other party is vested in the other party.

3.   The Buyer is not allowed to, without express consent of Brand Masters, use the trade names, the brands or Products of Brand Masters, whether or not for reference or advertising purposes.

4.   This provision shall also remain applicable after termination of an Agreement or Order of which these Terms and Conditions are part.

 

Article 19 – Costs of legal assistance

1.   The Buyer is liable to pay any and all extrajudicial and judicial costs to Brand Masters if the Buyer does not comply with one or more of is exigible obligations and Brand Masters relies on the services of a third party in connection with the said non-compliance. These costs are calculated on the basis of the rates charged by the said third party plus everything that the said third party pays to third parties in connection with the performance of its duties. The compensation for the costs of the third party to be relied on is related to any and all activities performed by the said third party in this context. As the occasion arises, the Buyer is specifically held to compensate Brand Masters for the extrajudicial collection costs of Brand Masters, set at 10% of the payable amount with a minimum of € 150.00.

2.   If Brand Masters rightly disputes a claim of the Buyer then any and all costs deriving from the said dispute shall be at the expense of the Buyer. This also includes the costs incurred due to the hiring of a third party according to the common rates of the said third party and the costs payable by Brand Masters, as well as the internal involvement of Brand Masters itself according to the rate applicable at the same, the latter with a minimum of € 150.00.

 

Article 20 – Other provisions

1.   If a provision of these Terms and Conditions and/or the Agreement is null and void or is nullified then the remaining provisions of these Terms and Conditions shall remain in full force and effect and the Parties shall enter into discussions in order to agree on new provisions to replace the null and void and/or nullified provision in the course of which the purpose and the scope of the null and void and/or nullified provision are observed as much as possible.

2.            Any and all legal relationships between Brand Masters and the Buyer, to which these Terms and Conditions are applicable, as well as any and all legal relationships that are the result of the same, are exclusively governed by Dutch law with the exclusion of the United Nations Convention on Contracts for the International Sale of Goods.

3.            Brand Masters and the Buyer commit to first try to settle disputes that may arise between them – including disputes that are only qualified as such by one of them – through amicable discussions. If one of the Parties or both Parties declare that the said discussions have failed, or if discussions are useless in the circumstances of the case, then each Party is entitled to bring the dispute to the cognisance of the court. In the first instance only the District Court for Zeeland and Western Brabant is competent, without prejudice to the authority of Brand Masters to bring the dispute to the cognisance of another competent court.