General terms and conditions of delivery and payment of Bèkske: Rwandan Empowerment Coffee B.V.
Established in Tilburg, deposited at the Chamber of Commerce on 22 January 2021 under registration number 74039806
1.1 These general terms and conditions apply to all offers, quotations, orders, deliveries and to all agreements for the execution of work and/or purchase and sale of Bèkske: Rwandan Empowerment Coffee B.V., established in Tilburg, hereinafter referred to as ‘Bèkske’. The client or buyer will be referred to below as the ‘other party’. By accepting an offer and/or placing an order, the other party accepts the applicability of these general terms and conditions.
1.2 General terms and conditions of the other party, under any denomination, shall expressly not apply. Deviations from these terms and conditions shall only form part of the agreement concluded between the parties if and insofar as both parties have expressly agreed to this in writing. Agreed deviations shall never apply to more than one transaction.
1.3 If the other party is a natural person who does not act in the exercise of a profession or business, the articles of these terms and conditions or parts thereof shall not apply if they are unreasonably onerous for the other party and therefore appear on the list referred to in Article 6:236 of the Dutch Civil Code, or if they are contrary to provisions of mandatory consumer law.
1.4 The possible non-applicability of (part of) a provision of these general terms and conditions does not affect the applicability of the other provisions.
1.5 If deemed desirable and/or necessary, Bèkske is authorised to amend these General Conditions.
1.6 The rights and obligations which arise from the agreement(s) entered into and to be entered into with the other party, and of which these conditions form part, may not be transferred by the other party to third parties without the permission of Bèkske. In the same way, these rights and obligations cannot be transferred by operation of law.
2.1 Unless expressly stated otherwise and/or offers and quotations contain an acceptance term, they are without obligation and Bèkske is authorised to revoke these offers within five working days of acceptance by the other party.
2.2 Offers are made subject to product availability. When a product is (temporarily) no longer available, the other party will be informed as soon as possible after the order is placed.
2.3 The information provided by Bèkske, in any form and manner whatsoever, with respect to the products offered (such as flavours, illustrations, drawings, sizes, weights, yields, colours and the properties of test specimens provided) is as accurate as possible, but cannot provide more than a general presentation of what is offered. The other party must therefore take into account, among other things, the normal and/or customary tolerances in the sector. Deviations will not release the other party from the obligations ensuing from the agreement. Bèkske will not accept any liability.
2.4 Apparent clerical errors or mistakes in Bèkske’s offers will release it from the obligation to comply and/or any obligations to pay damages arising therefrom, even after the agreement is concluded.
3.1 The description of the content of the agreement in the written confirmation to be sent by Bèkske to the other party, which must be signed for approval and returned to Bèkske by the other party within eight working days of receipt, is proof of the content of the agreement. If the other party fails to respond within this period, the agreement will be deemed to have been concluded in accordance with the written confirmation.
3.2 If, after the agreement has been realised, the other party wishes to amend and/or cancel the agreement, it must inform Bèkske of this in writing as soon as possible. Change and/or cancellation is only possible if Bèkske also agrees to this. The risk in respect of verbal and/or telephonic changes and/or cancellation rests with the other party, unless Bèkske has confirmed the change concerned in writing.
3.3 In the event of premature cancellation, the other party will owe Bèkske compensation of at least 30% of the agreed price. The other party will be liable towards third parties for the consequences of the cancellation and will indemnify Bèkske in this respect. Amounts already paid by the other party will not be refunded.
3.4 If, during the execution of the agreement, it appears that it cannot be executed, either as a result of circumstances unknown to the user or as a result of any force majeure, Bèkske will be entitled to demand that the order given to it be changed so that the execution of the order becomes possible, except when this will never be possible as a result of the unknown circumstances or force majeure.
3.5 The extra costs in connection with an alteration, of whatever nature, shall be at the expense of the other party. If the other party wholly or partially cancels the agreement, it will be obliged to fully indemnify Bèkske for all costs and losses resulting from this.
3.6 If and insofar as required for the proper execution of the agreement, Bèkske has the right to have certain activities performed by third parties.
4. Quantity, weight and tare (in the event of green beans)
4.1 The quantity of coffee to be delivered will be specified per order confirmation. The actual amount of coffee delivered may deviate from the amount stated in the order confirmation by a maximum of 3% (more or less).
4.2 The weighing of the coffee shall be done in accordance with local custom. Unless otherwise specified in the Agreement, the coffee shall be weighed at the time of dispatch. The invoice shall therefore be drawn up on the basis of the weight weighed at the time and place of dispatch of the coffee.
4.3 If the tare for the coffee has not been determined, 500 grams per bag shall be deducted.
5. Quality (in the case of green beans)
5.1 The following conditions shall apply with regard to quality:
5.2 If the coffee is sold on the basis of a sample from a specific coffee stock, the coffee delivered must be in perfect conformity with the coffee sample;
5.3 If the sale of coffee is based on a type or reference sample, the average quality of the coffee delivered must correspond to the submitted sample;
5.4 Where coffee is sold on the basis of a description based on certain parameters, the coffee supplied must correspond to this description in all respects;
5.5 In the case of a sale of coffee based on a special classification, the coffee delivered must correspond to this classification and its quality must be in line with the average of the harvest at the place and time of shipment;
5.6 Finally, a sale may also be concluded ‘on approval’ of a sample by the other party, if the parties agree and expressly stipulate this. In this case Bèkske will deliver a coffee sample to the other party as soon as possible, who must accept or refuse it within 24 hours of receipt. A refusal is only justified if the sold lot as a whole does not meet the required quality and cannot be used for the purpose intended by the other party. Such a refusal releases Bèkske from any further obligation relating to the delivery of the coffee. Bèkske is nevertheless free, within 30 days until full or partial execution of the contract, to offer other lots similar to the quality sold.
5.6 Barring evident error, gross negligence or deceit on the part of Bèkske, the counterparty may not invoke a difference in quality between the coffee delivered and the aforementioned sample to cancel the purchase or refuse to accept coffee. Such difference in quality may only give right to compensation to be paid by Bèkske in the event of abnormal deviation(s).
6. Prices/statements of prices
6.1 Prices are in Dutch currency, exclusive of VAT and/or other government levies and are calculated exclusive of the costs of transport and/or shipping and insurance. The costs mentioned here are at the expense of the other party.
6.2 If the other party is a natural person not acting in the exercise of a profession or business, the prices shall be quoted in Dutch currency, including VAT.
6.3 Price quotations shall relate exclusively to the quantities indicated and shall apply only insofar as the entire product offered is purchased.
6.4 The information in price lists and other documents is subject to change and is not binding to Bèkske, unless these prices and information have been explicitly agreed with the other party in writing. Bèkske reserves the right to change prices, in particular when this is required on the basis of (statutory) regulations (see 6.5).
6.5 The price is determined at the time the agreement is entered into. However, if at any time thereafter, before full delivery has taken place, changes occur in one or more price-determining factors, of any nature whatsoever, resulting in the fact that the agreed price should have been higher, Bèkske is authorised to change this price.
6.6 If the other party is a natural person who does not act in the exercise of a profession or business, price increases may be passed on or charged 3 months after the conclusion of the agreement in the above-mentioned sense. In the event of price increases within a shorter period than 3 months, the other party is authorised to dissolve the agreement.
7.1 The place of delivery is the address given in advance by the other party.
7.2 Delivery does not take place carriage paid, unless parties have explicitly agreed otherwise in writing.
7.3 Depending on the type of product, delivery will be made either without the intervention of Bèkske – directly by a supplier of Bèkske – or by Bèkske itself.
7.4 If a Bèkske supplier delivers, the supplier will arrange the method of transport and it will bear the risk relating to the products to be delivered. Bèkske will not bear any responsibility in this respect.
7.5 If Bèkske delivers to the other party, the transport and/or dispatch will take place in a manner to be determined by Bèkske, yet at the risk and expense of the other party, unless parties explicitly agree otherwise in writing.
7.6 The other party guarantees good accessibility to the place of destination and is responsible for the unloading/loading.
7.7 Bèkske is authorised to make use of third parties for delivery. If the counterparty is not present at the time of delivery, Bèkske is entitled, after signing the delivery note, to transfer the order to third parties at the address of the counterparty or at the adjacent address. The risk in respect of the products will pass to the other party or third parties after the signing of the delivery note.
7.8 If it has been agreed that the products to be delivered shall be collected by the other party, the risk in respect of these products shall pass to the other party at the moment they are at our disposal. The products must be collected by the other party within 10 days of a message from Bèkske to this effect.
7.9 If it proves impossible to deliver products to the other party for a reason attributable to the other party, Bèkske reserves the right to store the products. The user will notify the other party in writing of the storage and at the same time set a reasonable term within which the other party must enable Bèkske to deliver the products. If the other party continues to fail to comply with its obligations after the expiry of the period, the other party will be in default by the mere lapse of one month calculated from the date of storage and Bèkske will be entitled to dissolve the agreement in writing in whole or in part, with immediate effect, without prior or further notice of default, without judicial intervention and without being obliged to compensate damage, costs and interest. The provisions of this article do not affect the obligation of the other party to pay the agreed price, and storage and/or other costs.
7.10 Bèkske is authorised to deliver in parts.
8. Delivery terms
8.1 Delivery periods are indicated approximately and may never be considered as a strict deadline, not even if these periods have been expressly accepted by the other party. In the event of late delivery, the other party should therefore give Bèkske written notice of default and grant a reasonable term to fulfil its obligations.
8.2 The delivery period commences on the day after Bèkske has received full details for the execution of the agreement concluded with the other party.
8.3 In the event of delivery in parts, each delivery will be considered a separate transaction.
8.4 If the other party requests Bèkske to deliver before expiry of the agreed delivery period, if and insofar as this is possible, the extra costs incurred by Bèkske in connection with this, such as the costs of overtime, will be paid by the other party.
8.5 If, at the request of the other party, Bèkske performs other performances which fall outside the content or scope of the agreement, these performances will be compensated by the other party in accordance with the customary rates. The other party accepts that the performances referred to in 8.4 may influence the agreed time of delivery.
9.1 Payment must be made, without any deduction or set-off, in cash on delivery or, in the event of invoicing, within the due date indicated on the invoice, by deposit or transfer into Bèkske’s bank account.
9.2 If the execution of the agreement extends over a period of more than (1) month, or if in our opinion the amount involved qualifies, Bèkske is authorised to invoice in the interim or in instalments, or to demand advance payment. The provisions of 9.1 then apply accordingly. This also applies in the event of a partial delivery.
9.3 If the creditworthiness of the other party reasonably gives cause to do so, Bèkske may require partial or full advance payment or further security for the fulfilment of the other party’s obligations, failing which Bèkske may suspend or dissolve the execution of the agreement. The other party will then be liable for the loss incurred by Bèkske as a result.
9.4 If an invoice is not paid in full after expiry of the period referred to in paragraph 1, irrespective of whether the other party can be blamed for this, the other party will be in default by operation of law. No demand or notice of default will be required for this. From that time, Bèkske:
9.5 The right to charge a commercial interest (as referred to in Section 6:119a of the Dutch Civil Code) of at least 3% above the discount rate of the Nederlandsche Bank applicable at that time on (the) overdue amount(s), to be calculated per calendar month or part thereof.
9.6 The right to charge the other party an amount of at least €20.00 for administration costs for each payment reminder, demand and suchlike sent to the other party.
9.7 The right, should it be necessary to hand over a claim, apart from further claims for damages, to have the other party pay all costs relating thereto, both judicial and extrajudicial, the latter being calculated according to the collection rate of the Dutch Bar Association.
9.8 Bèkske has the right to suspend the delivery of products which it holds for the other party in connection with the execution of the agreed activities, until all payments owed by the other party to Bèkske have been settled in full.
9.9 At the discretion of Bèkske, the agreement may be wholly or partially dissolved in the above or similar circumstances, without further notice of default or judicial intervention, whether or not combined with a claim for damages.
10.1 The other party shall be obliged to check non-perishable goods and/or other goods immediately on receipt.
10.2 At the risk of forfeiting the right to complain, any complaints relating to visible imperfections and/or deficiencies in the quantity to be delivered must be noted on the waybill or consignment note or submitted to Bèkske in writing within 24 hours of delivery, with an accurate description of the nature and grounds for the complaints.
10.3 All other complaints must reach Bèkske by registered letter within two weeks of imperfections becoming known or should have become known, with an accurate description of the complaint(s).
10.4 On penalty of forfeiture of the right to complain, the products regarding which the other party complains must be carefully stored by the other party and made available to Bèkske on first request for further investigation.
10.5 Complaints will not be accepted:
10.6 If the products show deviations which fall within a normal or customary production tolerance in the sector. Minor deviations regarding sizes, weights, numbers, colours and the like do not apply as a shortcoming on the part of Het Bèkske.
10.7 If products show deviations as a result of external causes and/or of any actions or omissions by the other party or third parties. In particular, but not exclusively, no complaints can be made if the imperfections are caused by inexpert use and/or use contrary to the instructions and/or inexpert storage.
10.8 If the nature and/or composition of the products have changed after delivery, have been fully or partially processed, damaged or repacked.
10.9 If the other party complains with due observance of the above and Bèkske considers its complaint to be justified, Bèkske will, at its discretion, either refund the purchase price or redeliver. In the event of redelivery, the earlier shipment will become the property of Bèkske and will be returned postage paid. By complying with one of the aforementioned performances, the guarantee obligation will have been met and Bèkske will not be obliged to pay any further (compensation).
10.10 Complaints will not suspend the other party’s payment obligation. The other party cannot derive any rights from that stipulated in 10.6 if and insofar as the payment obligation towards Bèkske has not been met.
11.1 The fulfilment of Bèkske’s obligations in respect of a claim/warranty, as described above under 10, is the sole and complete compensation. Any other claim for compensation, on any grounds whatsoever, is excluded, except in the event of gross negligence or intent. More specifically, Bèkske is not liable for printing, spelling or counting errors and/or ambiguities in advertising material and/or quotations or order confirmations.
11.2 Bèkske is, also in the event of wilful intent or gross negligence, not liable, either towards the other party or third parties, for consequential loss, loss due to delay, loss in the form of lost profits or immaterial loss.
11.3 Bèkske will not be liable for damage caused by third parties (including suppliers). The other party is obliged to indemnify Bèkske and hold it harmless against all claims by third parties, irrespective of the nature and context of such claims, and waives any recourse against Bèkske in this respect.
11.4 In all cases, the period within which Bèkske can be sued for compensation for established damages will be limited to six months, calculated from the moment at which the obligation to pay compensation is established.
11.5 If the other party is a natural person not acting in the exercise of a profession or business, the maximum period within which Bèkske can be sued for compensation of the determined loss is one year, calculated from the moment the liability for damages has been established.
11.6 In the event of liability, insofar as this is covered by Bèkske’s liability insurance, it is limited to the amount paid by the insurer. If, in any case, the insurer makes no payment or the damage is not covered by the insurance, Bèkske’s liability will be limited to the amount which the other party owes us by virtue of the agreement, however, to a maximum of €5,000.
12. Force majeure
12.1 The other party expressly waives any recourse against Bèkske when Bèkske was unable to execute the contract in full or in part, or only with delay, due to a case of force majeure. This also applies if these circumstances concern Bèkske’s suppliers or experts engaged by Bèkske.
12.2 Force majeure is understood to include any circumstance outside Bèkske’s will and action, whether or not foreseeable at the time of concluding the agreement, as a result of which Bèkske cannot reasonably be expected to comply. Examples of this are (not exhaustively listed): lack of raw materials, factory or transport disruptions of any nature, strike, lack of manpower, lack of shipping space, frost delay, fire, flood, epidemics, quarantine, state of siege, war, uprising, blockade or prohibition of import and export by land, sea or air, strike, lack of manpower, breach of contract by third parties – whether or not attributable to him/her – engaged by us for the execution of the agreement and all impediments caused by government measures.
12.3 In the event of a force majeure situation, Bèkske will inform the other party as soon as possible and inform the purchaser whether delivery is still possible and, if so, within what period.
12.4 If delivery is not permanently impossible, but cannot still take place within four months, both parties will be entitled to dissolve the agreement by notifying the other party in writing, without either party being able to claim compensation from the other. Such notice must be given within one week after the (receipt of the) notice referred to in 12.3.
12.5 The other party will remain obliged to pay for the part of the agreement already executed by Bèkske.
13. Retention of title
13.1 Bèkske expressly retains title to the products to be delivered until the other party has fulfilled all its obligations arising from the agreement, including the obligations to pay costs, interest and surcharges which are for the account of the purchaser.
13.2 If the other party fails to comply with its obligations arising from the agreement, or there is a well-founded fear that it will not do so, Bèkske will be entitled to take back the delivered products which are subject to retention of title, from the other party or from third parties. The other party must reimburse Bèkske for the costs incurred in this respect.
13.3 The other party shall be authorized, if and insofar as necessary in the framework of its normal business operations, to dispose of the products on which the retention of title rests. If the other party makes use of this authority, it is obliged to deliver the products on which the retention of title rests to third parties only under reservation of ownership rights. It is also obliged to grant Bèkske a silent pledge on the claims which it has or will have on the third parties in question. Normal business operations do not include providing security to third parties, in any way and form whatsoever.
13.4 If the products to be delivered by Bèkske are intended to be mixed with third-party property, the other party is obliged to grant Bèkske, if necessary before delivery to it, an undisclosed pledge on the claims which it has or will have on this third party.
14.1 Bèkske is authorised, without notice of default and without prejudice to Bèkske’s other rights, to dissolve or suspend the agreement in full or in part with immediate effect and without judicial intervention if the other party applies for a suspension of payments, submits a petition for bankruptcy or if its bankruptcy is petitioned, if the company is shut down, liquidated or taken over in full or in part, is placed under guardianship or administration or otherwise loses the power of disposition or legal capacity with respect to its assets or parts thereof. In these cases, any claim on the other party will be immediately due and payable in full, without Bèkske being obliged to pay compensation or provide a guarantee.
14.2 The above also applies if the other party fails to fulfil its obligations towards Bèkske.
Until the time at which the other party has completely fulfilled its payment obligations towards Bèkske, the other party is not authorised to pledge the delivered goods to third parties and/or to create a non-possessory pledge on them, and/or to place the goods for storage in the actual control of one or more financiers (warrantage), as this will be considered as attributable non-compliance on its part. Bèkske may then immediately, without being required to give any notice of default, dissolve its obligations arising from the agreement, without prejudice to Bèkske’s right to compensation for damage, loss of profit and interest.
16. Intellectual and industrial property rights
16.1 All intellectual or industrial property rights relating to the content and form of drawings, designs, products, descriptions, advice, etc. are vested exclusively in Bèkske.
16.2 The exercise of the rights referred to in the previous paragraph – including publication or transfer of data – both during and after the execution of the agreement is expressly and exclusively reserved to Bèkske. Only after payment of the amount owed to Bèkske as a result of an agreement entered into will the other party be granted a right of use with respect to the above.
16.3 The other party is not permitted to infringe any copyrights, brands, trade names or other intellectual and industrial property rights in respect of the products delivered by Bèkske.
17. Data protection
Bèkske will store the other party’s data, such as name, address and e-mail address, in a database. The data will be used for the execution of the agreement and to inform the other party in the future about offers by Bèkske. The other party’s data will not be passed on to third parties without explicit permission. The Personal Data Protection Act fully applies to this.
18. Disputes, applicable law and competent court
18.1 If there is a lack of clarity regarding the explanation of one or more provisions of these general terms and conditions, the explanation of these provision(s) should take place ‘in the spirit’ of these general terms and conditions.
18.2 Dutch law applies exclusively to the agreement entered into between Bèkske and the other party. Disputes arising from this agreement will also be settled according to Dutch law. Foreign law is excluded.
18.3 Disputes regarding concluded agreements may only be submitted to the competent court in Bèkske’s place of establishment (to the exclusion of all other arbitrating, advisory and judicial bodies), unless Bèkske prefers to submit the dispute to another relatively competent court or another court which is relatively competent by law.