Algemene Voorwaarden

Article 1: General 

1.1. All offers and agreements of The Impulse Factory B.V. (“we”, “our” or “us”) and their execution are subject to these terms and conditions (“Terms”). Any deviations to these Terms are only valid if agreed in writing. In these Terms, Buyer refers to any (legal) person that has concluded, or wishes to conclude, an agreement with us. The applicability of general terms and conditions applied by Buyer is excluded explicitly. 

Article 2: Offer and agreement

2.1.    Unless explicitly stated otherwise in writing, all our offers remain valid for thirty (30) days from the date of issuance. Our offers are non-binding and only create a binding obligation once confirmed by us in writing. 

2.2. The distribution of offers, brochures, price lists, promotional materials, samples, and similar materials, whether in physical or electronic form, is for informational purposes only and does not constitute a binding offer or create any obligation on our part to supply products or accept any orders. 

2.3. An agreement is only concluded upon (i) the issuance of a written order by Buyer and (ii) our acceptance of such order through a written order confirmation, which may be provided electronically. Our order confirmation shall be considered to accurately and fully represent the agreement between the parties. Any terms or conditions in Buyer's order that conflict with or add to these Terms shall have no effect unless explicitly accepted by us in writing. We reserve the right to refuse any order without stating reasons.

2.4. Any additional arrangements, amendments, or modifications to the agreement, whether made before or after its conclusion, and any representations, promises, or commitments made by our employees, salespersons, agents, representatives, or other intermediaries, shall only be binding on us if confirmed in writing by an authorized representative of our company. For clarity, email confirmation from an authorized representative shall constitute written confirmation.

2.5. Any agreement is contingent upon our reasonable assessment of Buyer’s financial creditworthiness. We may conduct credit checks before and during the term of the agreement. If Buyer's creditworthiness is deemed unsatisfactory by us at any time, we may, at our discretion: (i) require Buyer to provide adequate security for its payment obligations in a form acceptable to us (such as a bank guarantee or letter of credit), (ii) modify payment terms, or (iii) suspend or terminate deliveries until satisfactory security is provided.  

2.6. If Buyer cancels or reduces an order after our confirmation but before delivery, Buyer shall compensate us for: (a) finished Products at the agreed price; (b) work-in-process and materials at cost plus 15%; (c) third-party cancellation charges; (d) handling fees; and (e) lost profits of 15% of the cancelled value, unless we prove higher losses. 

Article 3: Prices and payment

3.1. The prices are exclusive of taxes, duties, customs, and tariffs, and such taxes, duties, customs, and tariffs if and as set forth on any applicable invoice will be the responsibility of Buyer.

3.2. The price of the goods shall be the price set out in our order confirmation or, if no price is confirmed as such, the price set out in our published price list or any other official pricing document in force as at the date of delivery. 

3.3. We may, upon providing thirty (30) days prior written notice to Buyer, revise our prices (including after issuance of an order confirmation) to take account of inflation or increases in costs associated with (a) (the supply of) raw materials, energy, products, equipment, transportation, labor, overheads and insurance; (b) new taxes, duties and/or levies introduced or implemented in respect of the goods; (c) variation in exchange rates; (d) requested changes to delivery date(s), quantities or types of goods ordered or applicable Incoterms and/or (e) the rejection, delay, rescheduling, placement on allocation or cancellation of orders, confirmed orders and shipments. 

3.4. We shall invoice Buyer for the goods on or at any time after the completion of delivery. Buyer must pay the purchase price within 30 (thirty) days of the date of the invoice, except if otherwise agreed in writing. All payments shall be made in full without any deduction or set-off unless required by law. 

3.5. Any disputes regarding invoices must be submitted in writing within 14 days of the invoice date, including a detailed explanation of the disputed items. If Buyer does not raise a dispute within this period, the invoice shall be deemed approved. During the resolution of any properly disputed invoice items, Buyer shall remain obligated to pay all undisputed portions of the invoice within the original payment term.

3.6. If we have reasonable grounds to believe that Buyer’s ability to make payment is compromised (such as repeated late payments, negative credit reports, or deteriorating financial condition), we shall first notify Buyer in writing of our concerns. If Buyer fails to provide adequate assurance of its ability to pay within 7 days, we may require advance payment, bank guarantees, or other reasonable forms of payment security for future deliveries. Additionally, if any previous deliveries remain unpaid beyond their due date despite written notice, we may suspend further deliveries until all outstanding payments are received.

3.7. In the event of late payment, we reserve the right to charge interest at a rate of the statutory commercial interest rate as referred to in Article 6:119a of the Dutch Civil Code until full payment is received. This does not affect our right to suspend the fulfillment of any ongoing agreements or to terminate any agreement with Buyer, in whole or in part, at our discretion, without judicial intervention and without any obligation to compensate Buyer. Buyer shall be responsible for all costs and expenses, whether judicial or extrajudicial, including attorneys’ fees, incurred by us in the collection of our receivables. The extrajudicial costs will be a minimum of ten percent (10%) of any outstanding amount or, if lower or higher, the amount under the applicable law.

3.8. If two or more buyers enter into an agreement together, each shall be jointly and severally liable for the full payment of the purchase price. In cases where the buyer is a member of a purchasing association or other business association acting as an intermediary in the purchase and sale of the goods, both the buyer(s) and the association shall be jointly and severally liable for the payment obligations.

Article 4: Delivery/delivery time/inspection

4.1. The delivery of the goods shall occur in accordance with the Incoterms agreed between the Parties. If no such terms have been agreed, then delivery shall take place Ex Works (Incoterms 2020) from our production facility. 

4.2. We are entitled to make partial deliveries of the goods to Buyer, provided that (i) such partial deliveries do not materially disrupt Buyer’s business operations, (ii) the partial delivery is usable for Buyer, (iii) the remaining delivery is secured, and (iv) Buyer does not incur substantial additional expenses or costs as a result. Each partial delivery shall be considered a separate transaction and shall be invoiced and paid for accordingly.

4.3. We shall use commercially reasonable efforts to meet the agreed delivery dates. Delivery dates are estimates only and time shall not be of the essence. We will communicate the expected delivery date as soon as reasonably possible after production planning is completed. If we anticipate a delay in delivery, we will promptly inform Buyer and provide an estimated alternative delivery date. If delivery has not occurred within 30 days after the alternative delivery date, Buyer shall have the option to terminate the agreement with respect to the delayed goods without penalty, and we shall refund any payments made for those goods.

4.4. Upon delivery of the goods in accordance with the agreed Incoterm, Buyer shall inspect the shipment within forty-eight (48) hours to verify conformity with the ordered quantities and specifications. Buyer shall notify any visible defects, damages, or non-conformities to us in writing within such forty-eight (48) hour period along with a detailed written description including photographic evidence where applicable. For latent defects discovered after delivery, Buyer must notify us in writing within three (3) business days after discovery, but in no event later than the "best by," "use by," or expiration date indicated on the Product packaging. Failure to provide timely notice shall constitute acceptance of the goods by Buyer. In the event of non-conformities, we shall provide the remedy as set forth in article 7.2. Any goods returned that are found to conform to the Agreement shall be returned to Buyer at its expense. 

4.5           If we experience material difficulties in procuring necessary raw materials at commercially reasonable prices and in sufficient quantities, we will promptly notify Buyer in writing. Upon such notification, the parties shall engage in good faith discussions for a period of thirty (30) days to find alternative solutions. If no mutually acceptable solution is reached within such period, either party may terminate the Agreement with respect to the affected Products upon written notice to the other party. Such termination shall not affect any orders already confirmed by us prior to the termination notice, and neither party shall have any further obligation or liability to the other regarding the affected Agreement, except for obligations or liabilities that have accrued prior to the termination.

Article 5: Risk; transportation; title

5.1. The risk of loss or damage to the goods shall pass to Buyer in accordance with the agreed Incoterms 2020 rules and if no Incoterm is agreed upon delivery to Customer.

5.2. Unless Buyer provides specific shipping instructions, we shall determine the method of transport, dispatch, and packaging in accordance with standard industry practice. Any special requirements requested by Buyer regarding transport or dispatch shall only be implemented if Buyer agrees in advance to bear the additional costs associated with such requirements. 

5.3. Title to the goods shall remain with us until Buyer has paid the full purchase price and all other amounts due under the Agreement. If Buyer fails to comply with its payment obligations, we shall be entitled to repossess the goods without prior notice of default or court intervention. Buyer shall cooperate fully with such repossession and hereby grants us access to the location where the goods are stored for this purpose. 

Article 6: Warranty

6.1. We warrant that at the time of delivery, the Products will: (i) substantially conform to the specifications set forth in Schedule A; (ii) be free from material defects in manufacturing; (iii) be manufactured in accordance with applicable food safety laws and regulations; and (iv) be fit for human consumption. This warranty is expressly conditioned upon proper handling, storage, transportation, and preparation of the Products in accordance with our written instructions and industry standards for similar food products. A breach of this warranty shall constitute a “non-conformity.”.

6.2. The warranty period for the Products shall be the "best by," "use by," or expiration date indicated on the Product packaging. Any non-conformity claim must be made within the applicable warranty period. In the event of a non-conformity during the warranty period we shall work with Customer to resolve the issue by either replacing the non-conforming Products or providing a refund of (a portion of) the purchase price, as determined by us in our reasonable discretion.  

6.3. The warranty set forth herein shall not apply to: (i) Products that have been altered, modified, or mishandled by Customer or any third party; (ii) Products that have not been stored, transported, or prepared in accordance with our instructions and/or industry practices; (iii) defects resulting from force majeure including extreme weather conditions, or other causes beyond our reasonable control; or (iv) Products that have passed their "best by," "use by," or expiration date.

6.4. This warranty, to the maximum extent permissible under applicable law, comes in lieu of all other warranties, obligations or promises, express or implied, statutory or otherwise.

Article 7: Force Majeure 

7.1. Neither Party will be liable or in default under this Agreement for any failure to perform any of its obligations when such failure is caused by circumstances beyond its reasonable control, including but not limited to acts of God; war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; fires, floods, earthquakes; epidemics, pandemics, quarantine restrictions, or any governmental or regulatory actions; strikes, freight embargoes, inability to procure raw materials at reasonable prices, or other events beyond its control (each, a "Force Majeure Event"). We shall notify you as soon as practicable of the occurrence of any Force Majeure Event and shall use commercially reasonable efforts to resume performance as soon as feasible. 

Article 8: Liability 

8.1. Notwithstanding any provision to the contrary contained in this Agreement, the Parties agree that to the maximum extent permissible under applicable law, our liability under this Agreement shall be limited as follows: (a) we shall only be liable for direct damages actually incurred by the Customer due to an attributable failure of us to fulfill its obligations under this Agreement, provided such damages are reasonable and documented; (b) In no event shall our total aggregate liability exceed the total amount invoiced to the Customer under this Agreement for the Products involved in the incident giving rise to the claim during the twelve (12) months immediately preceding the date on which the claim arose; (c) we shall not be liable for any indirect or consequential damages, including but not limited to, loss of profit, loss of business, loss of contract, loss of time, damage to reputation or loss of goodwill, or fines imposed by customers; (d) Any liability of us related to a Product delivered shall end the day after the "best by," "use by," or expiration date indicated on the Product packaging; and (e) The liability limitations set forth in this article 8 shall not apply to damages caused by our willful misconduct or gross negligence, or if liability cannot otherwise be excluded under mandatory law.

Article 9: Intellectual Property 

9.1. We shall retain exclusive ownership of all intellectual property rights pertaining to the goods, including, but not limited to, recipes, product formulations, compositions, manufacturing processes, know-how, and trade secrets, whether existing at the start of this Agreement and/or developed, improved or adapted during the term of this Agreement. Nothing in this Agreement shall be construed as granting Buyer any license or rights to our intellectual property. Buyer will not use our intellectual property beyond the purposes for which we disclosed it to Buyer under this Agreement, nor reverse engineer, decompile, disassemble or attempt to derive the composition or underlying information of the goods, nor disclose or allow third-party access to such intellectual property without our prior written consent.

Article 10: Confidentiality

10.1. Both Parties recognize that while executing the Agreement, each Party may have access to or be exposed to, directly or indirectly, confidential information of Buyer ("Confidential Information"). Confidential Information includes, but is not limited to, business and marketing plans, technology and technical information, product plans and designs, business processes and recipes disclosed by one Party to the other. Each Party agrees to preserve and protect the confidentiality of the Confidential Information and except as required by law or for the performance of this Agreement, neither Party shall use or disclose any Confidential Information without the written consent of Buyer. Each Party agrees to restrict access to the Confidential Information to those employees, agents, or contractors who require access in order to perform their obligations under this Agreement and to ensure that such employees, agents, or contractors are aware of and comply with these confidentiality obligations.

10.2. The obligations of confidentiality shall not apply to information that (i) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing Party; (ii) becomes publicly known and made generally available after disclosure by the disclosing Party to the receiving Party through no action or inaction of the receiving Party; (iii) is already in the possession of the receiving Party at the time of disclosure, as shown by the receiving Party's files and records immediately prior to the time of disclosure; or (iv) is obtained by the receiving Party from a third party without a breach of such third party's obligations of confidentiality.

10.3. The confidentiality provisions of this Agreement shall survive the termination of this Agreement for a period of five (5) years, except in the event of our recipes, formulations and manufacturing processes, which which shall be kept secret for an unlimited time.

Article 11: Termination

11.1. An Agreement may be terminated by either Party with immediate effect upon written notice to the other Party in the event of (a) a material breach of the Agreement by the other Party that remains uncured for (i) forty thirty (30) calendar days after receipt of written notice in the case of payment defaults; or (ii) sixty (60) calendar days after receipt of written notice for all other material breaches; (b) the other Party becoming insolvent, entering into bankruptcy, liquidation, or similar proceedings, making a general assignment for the benefit of creditors, or ceasing to conduct business in the ordinary course; or (c) a Force Majeure Event affecting the other Party's performance for more than ninety (90) consecutive days. 

11.2. Upon expiry or termination of this Agreement for any reason: (a) Buyer shall purchase from us at the agreed contract price all finished goods that conform to the specifications; (b) Buyer shall reimburse us for (i) work-in-progress and raw materials specifically acquired or produced for Buyer's orders at our actual cost plus fifteen percent (15%); (ii) any reasonable and documented cancellation charges from our suppliers related to Buyer's orders; (iii) any specialized packaging materials purchased for Buyer's products; and (c) Each Party shall return or destroy (at the disclosing Party's option) all Confidential Information of the other Party.

Article 12: Miscellaneous

12.1. If any provision of this Agreement is held to be invalid, void, or unenforceable by a court of competent jurisdiction, such provision shall be modified to the minimum extent necessary to make it valid and enforceable. If such modification is not possible, the provision shall be severed from this Agreement. In either case, the validity and enforceability of the remaining provisions of this Agreement shall not be affected and the remaining provisions will nonetheless be enforceable according to their terms. 

12.2. The failure of either Party to enforce at any time any of the provisions of this Agreement may not be construed to be a waiver of such provisions nor the right of either Party to enforce such provisions in the future.

12.3. This Agreement and all matters arising out of or relating to it shall be governed by and construed in accordance with the laws of the Netherlands, without giving effect to any choice of law or conflict of law provisions. The United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply to this Agreement.

12.4. The competent courts of Breda, the Netherlands, shall have exclusive jurisdiction to hear and determine any dispute arising out of or in connection with this Agreement, including any question regarding its existence, validity, or termination. However, we reserve the right, at our sole discretion, to initiate proceedings against Buyer in any other court of competent jurisdiction, including the courts in Buyer's jurisdiction of establishment. 

© THE IMPULSE FACTORY B.V., Breda.