General Terms and Conditions of Nutrition Consultant Cooperative UA
Definitions and applicability of the General Terms and Conditions
Article 1: Definitions
For the purposes of the General Terms and Conditions:
- Principal shall be understood to mean the natural or legal entity that issued the instruction to carry out the requisite work and/or activities;
- Cooperative shall be understood to mean Nutrition Consultants Cooperative UA, having its registered office in Wageningen, the Netherlands, and recorded in the Chamber of Commerce trade register under registration number 67780997;
- Assignment shall be understood to mean the Agreement to Supply Services (also referred to as ‘the Agreement’) entered into by the Principal and the Cooperative;
- Proposal shall be understood to mean, to a greater or lesser extent, the itemised deliverables (also referred to as ‘the Deliverables’), and the costs budgeted in relation thereto;
- Order Confirmation shall be understood to mean the oral or written approval by the Principal of the Proposal submitted by the Cooperative.
Article 2: Applicability
- The terms and conditions set out herein shall apply to all proposals, quotations, activities and (oral) agreements reached or entered into by the Principal and the Cooperative, inasmuch as parties have not expressly deviated therefrom in writing.
- All other general or specific terms and conditions, irrespective of whether these are used by the Principal, shall not apply to the present agreement unless the Cooperative has expressly agreed thereto in advance, and in writing.
- The Cooperative shall at all times be entitled to amend these General Terms and Conditions. The revised terms and conditions shall take effect as of the first subsequent assignment, or whenever an existing assignment is extended, provided the Cooperative has furnished the Principal with said revised terms and conditions.
Conclusion of the agreement, content, commencement of the assignment, alterations
Article 3: Offer and acceptance
- The Proposal shall specify the Deliverables, an estimate of the number of hours required to execute said Deliverables, the delivery term or date, the procedures to be followed, the fee, details of any reimbursable expenses, the invoicing intervals and/or dates, and details of any additional agreements that may have been entered into.
- The Proposal shall furthermore specify the applicability of the General Terms and Conditions. By accepting the Proposal, the Principal agrees to the content and applicability of the General Terms and Conditions.
- The Cooperative shall be entitled to apply an acceptance deadline to the Proposal. The Assignment shall come into effect if and when the Principal accepts the Proposal before the aforesaid deadline expires. In the event that no deadline is specified in the Proposal, the Assignment shall come into effect if and when the Principal accepts the Proposal. The Cooperative retains the right, for a period of 5 working days following receipt of the Principal’s acceptance of the Proposal, to cancel and/or revoke the Assignment. In the event that the Assignment is authorised by more than one Principal, all Principal parties shall be jointly and severally liable for performing the obligations specified in the General terms and Conditions, irrespective of the party in whose name the Proposal, Order Confirmation or invoice has been drawn up.
- The Cooperative shall be the sole Supplier to the Principal, also if the Principal has the express or implied intention to delegate the Assignment to a specific member of the Cooperative. Articles 7:404, 7:407 section 2, and 7:409 of the Dutch Civil Code do not apply.
- The General Terms and Conditions shall apply to the Cooperative, its board, all members of the Cooperative and any other third party engaged by the Cooperative.
Article 4: Assignment
- The Principal undertakes to furnish the Cooperative with timely and accurate information and/or assistance whenever required by the latter in the execution of the Assignment. Should the Principal fail to provide such information and/or assistance, or in the event that information and/or assistance is incomplete or late, the Cooperative shall be entitled to postpone execution of the Assignment, or to conduct additional work, without requiring the Principal’s prior approval. The cost of additional work shall be for the account of the Principal, on the proviso that it reasonably reflects the Principal’s shortcomings.
- The Cooperative shall execute the Assignment to the best of its knowledge and ability, and in keeping with prevailing professional standards as well as the state of science and technology at the time of the Assignment.
Article 5: Changes to the Assignment
- The Principal accepts that execution of the Assignment may be subject to changes by virtue of unforeseen circumstances.
- Unless urgent circumstances dictate otherwise, the (execution of the) Assignment may only be changed following mutual, written agreement.
- Additional work and/or additional costs incurred pursuant to changes in the Assignment shall be for the account of the Principal. The Proposal shall specify details of the fees charged, as well as the cost of extra work.
Use of third parties
Article 6: Use of third parties
The Cooperative shall be entitled to engage the services of third parties in the execution of the Assignment.
Deadlines, delays, suspension of the Assignment
Article 7: Delays in the execution of the Assignment
Unless a fixed deadline is mutually agreed, the execution deadline set out in the Proposal is not fixed but based on a reasonable estimate. Any failure to execute the Assignment within the specified deadline shall not constitute an attributable shortcoming.
Article 8: Suspension
- The Cooperative shall be entitled to suspend fulfilment of its obligations under the Assignment if and insofar as:
- the Principal fails to meet its obligations in full and in time;
- the Cooperative becomes privy, after the Agreement has been concluded, to information that gives it good reason to fear that the Principal is unable to meet its obligations;
- in the event of force majeure on the part of the Cooperative.
- The right of suspension established by this article shall not prejudice the Cooperative’s right to cancel the Assignment under article 12.
- The Cooperative shall not be required to pay compensation or costs that may arise in the event that it suspends fulfilment of its obligations under the Assignment.
Payment terms and conditions
Article 10: Fees and payment terms
- The fee shall comprise a fixed charge and/or an hourly rate, denominated in Euros, plus VAT and expenses, including, if any, travelling time, travel and accommodation expense, as well as equipment costs. Expenses may only be charged with the prior approval of the Principal.
- The agreed fee shall apply for the duration of the calendar year in which the Assignment was contractually agreed, and may be revised annually thereafter, in reflection of any pertinent price increases.
- The Cooperative shall be entitled to increase its fee unilaterally if necessitated by a statutory price increase, without the Principal being entitled to dissolve the Agreement.
- The Cooperative shall invoice the Principal at the end of the calendar month in which it has conducted work in relation to the Assignment.
- The Principal shall be obliged to pay the invoice in full, within 30 days of the invoice date, and in accordance with the instructions included on the invoice by the Cooperative. Payments made in a manner other than specified by the Cooperative shall not be deducted from the Principal’s payment obligation. The Principal shall not be entitled, for whatever reason, to offset any amount against invoices received from the Cooperative.
- In the event that the Principal fails to pay the full invoice amount within the payment term, it shall be in default by operation of law, and be required to pay, as of the payment deadline and without notice of default being required, the statutory commercial interest rate applicable in the Netherlands in respect of the unpaid balance, until such time as the invoice has been paid in full.
- All reasonable collection costs, legal and extrajudicial, shall be for the account of the Principal.
- Remittances by the Principal shall be applied to pay down costs, interest on overdue amounts, and principal as well as accrued interest, in that order.
- Objections to the invoice amount shall be submitted to the Cooperative in writing, within 5 working days following receipt of the invoice. Such objections shall not entitle the Principal to suspend or delay its payments.
Cancelling the Assignment – consequences
Article 11: Cancellation procedure
Both parties are entitled to cancel the Assignment by informing the other party accordingly, in writing. Notice of cancellation shall be given as at the end of the calendar month, subject to a notice period of three calendar months.
Article 12: Grounds for cancellation
- The Cooperative shall be entitled to cancel the Assignment with immediate effect if the Principal goes bankrupt or applies for a (provisional) suspension of payment, and/or in the event of attachment, the suspension or liquidation of operations, a merger, a demerger, or a change in the Principal’s legal or cooperative form.
- The Cooperative may stop work on the Assignment immediately, and without giving notice of default if:
- the Principal fails to meet its obligations towards the Cooperative in full and in time;
- the Cooperative becomes privy, after the Agreement has been concluded, to information that give it good reason to fear that the Principal is unable to meet its obligations in full and in time.
- in the event of force majeure.
Article 13: Consequences of cancellation
- In the event that the Assignment is cancelled, the Principal shall be required to pay all fees and expenses due and owing as at the Assignment termination date.
- The Cooperative shall not be liable to pay compensation in the event that the Assignment is suspended or cancelled, as referred to in articles 5 and 12 respectively.
Retention of title, (possessory) lien and intellectual property
Article 14: Retention of title
- Deliverables supplied to the Principal under the Agreement shall remain the property of the Cooperative until the Principal has fulfilled its obligations in full. The Principal shall not use, publish, make public, sell, dispose of, pledge, charge or use as a payment instrument any Deliverables that have been supplied and to which a retention of title applies.
- If the Principal fails to fulfil any obligation arising under the Agreement and/or the General Terms and Conditions, the Cooperative shall be entitled to take back any Deliverables that have already been supplied.
- Should a third party seek to attach a Deliverable to which a retention of title applies, or if such party seeks to establish or exercise a right in relation thereto, the Principal shall inform the Cooperative accordingly, and without delay.
Article 15: Lien
The Cooperative shall be entitled to retain any goods owned by the Principal that are in its possession until the Principal has paid any and all fees and expenses that are due by virtue of the Assignment, unless the Principal has provided adequate security for the proper payment thereof. Lien shall also apply to earlier Assignments under which payments are owing.
Article 16: Intellectual property
All intellectual property, including but not limited to models, techniques, concepts, instruments and software, that have been used to deliver the Assignment shall remain the property of the Cooperative. Following on from the above, intellectual property may only be disclosed to other parties with the explicit consent of the Cooperative. The Principal is entitled to reproduce the deliverables for use within the organisation, inasmuch as said use reflects the objective of the Assignment.
Liability and indemnification
Article 17: Liability
- An attributable shortcoming on the part of the Cooperative shall be deemed to exist if, in executing the Assignment, it has conducted itself in a manner that a properly informed and adequately equipped contractor could and should have avoided, and only after the Cooperative has been notified of said attributable shortcoming in writing by the Principal, whereupon it shall have the opportunity to rectify the (consequences) of the shortcoming within a reasonable period of time.
- The liability of the Cooperative shall at all times be limited to the maximum amount invoiced under the Assignment, and shall only apply to invoice amounts relating to Deliverables in respect of which an attributable shortcoming has occurred, subject, in all instances, to the maximum insurance payment received in relation thereto. For Assignments with a term exceeding 6 months, the Cooperative’s liability shall be limited to the amount invoiced during the six month-period preceding the notice of liability.
- The Cooperative shall not be liable for any loss arising from the incorrect use of erroneous and/or incomplete information where such information has been submitted by or on behalf of the Principal.
- The Cooperative shall only be liable for direct losses; indirect losses, including consequential loss, loss of income, missed savings and losses on account business interruptions, are expressly excluded.
- The Cooperative shall not be liable if the Principal partly implements, sells or otherwise uses the Cooperative’s Deliverables in a manner other than defined or recommended by the Cooperative. The Cooperative shall not be liable for any shortcomings to its Deliverables if the Principal has made changes or modifications thereto.
- The Cooperative shall not be liable for losses by virtue of shortcomings in the implementation of the Assignment if the Principal has failed to inform it of said shortcomings within 14 days following the discovery thereof or the moment that the Principal could reasonably have discovered said shortcomings. Any claim for damages or loss shall in any case cease to apply five years after the event that gave rise to said claim.
Article 18: Indemnification
The Principal hereby indemnifies the Cooperative against any third-party claims for damages or losses if the shortcoming underlying the claim is attributable to parties other than the Cooperative. In the event that the Cooperative is held liable by a third party, the Principal shall be obliged to provide the Cooperative with legal and extra-judicial support, and to take or refrain from taking any steps that can reasonably be expected of it.
Article 19: Other provisions
Invalidity or nullity of any provision in the General Terms and Condition shall not affect the validity of the other provisions. Any provision that is considered invalid or void shall be replaced with a provision whose legal consequences reflect the provision it replaces in as far as possible, in keeping with the purpose and scope of the General Terms and Conditions.
Disputes and applicable law
Article 20: Disputes and applicable law
- Disputes shall be resolved amicably, in as far as possible. Should an amicable solution not be possible for either party, the dispute will be submitted to a competent court.
- The legal relationship between the Cooperative and the Principal shall be governed by Dutch law. This also applies to Assignments where one or more Deliverables are sourced or executed abroad, either in full or in part, and Assignments in relation to which products and services are purchased from organisations established outside the Netherlands.
A copy of these General Terms and Conditions has been filed with the Chamber of Commerce.