Conditions of purchase

General Conditions of Purchase – Food

DO-IT B.V.

 

Article 1: Applicability

  1. All agreements entered into by DO-IT B.V. (“DO-IT”) regarding the purchase of goods by or the provision of services to DO-IT are governed exclusively by these General Conditions of Purchase (the “General Conditions”).
  2. In the event of inconsistency between an agreement entered into by DO-IT and these General Conditions, the provisions of the agreement in question prevail.
  3. The applicability of any general conditions of the supplier is expressly excluded, also if such general conditions of the supplier have been referred to or have been declared applicable in the past.
  4. For the purposes of these General Conditions, “DO-IT” means DO-IT B.V., Organic Assistance B.V. or a company affiliated with one of those companies that declares these General Conditions applicable.
  5. For the purposes of these General Conditions, the term “supplier” means any natural person or legal entity with which DO-IT enters into an agreement or negotiates on the conclusion of an agreement regarding the supply of goods or the provision of services to DO-IT.
  6. Provisions that differ from these General Conditions must be agreed in writing and apply only when expressly confirmed in writing by DO-IT’s duly authorised representative.
  7. DO-IT reserves the right to amend these General Conditions at any time. Such amendments enter into force fourteen days after notice to the supplier from DO-IT. The general conditions that applied on the date of conclusion of an existing agreement continue to apply to that agreement.

Article 2: Offers

  1. An offer requested by DO-IT or drawn up by the supplier is not binding on DO-IT until DO-IT expressly declares in writing that it accepts the offer in question.
  2. Offers made by the supplier are valid for a period of thirty days, commencing on the date of the offer.

Article 3: Conclusion and content of an agreement

  1. The conclusion of an agreement with DO-IT is subject to express written acceptance of the agreement by DO-IT.
  2. The content of an agreement between the parties is determined exclusively by the relevant statements in the order confirmation and by the provisions of these General Conditions.
  3. An agreement pertains only to the supply of the number of goods expressly agreed.
  4. The supplier may change the specifications stated by DO-IT only with DO-IT’s prior written consent or at DO-IT’s written request.
  5. The supplier must immediately inform DO-IT in writing of any change in food allergen information.

Article 4: Prices

  1. The agreed prices are denominated in euros unless otherwise stated, are fixed prices and are exclusive of turnover tax (Dutch VAT). All import, export and excise duties, all other charges and taxes imposed on the goods and all extra costs related to the performance of the agreement, including but not limited to transport costs, insurance, packaging and handling fees, are included in the agreed price.
  2. DO-IT may cancel, terminate or dissolve (ontbinden) the agreement free of charge whenever the supplier changes its prices.
  3. All samples and test results provided by the supplier are free of charge, both before and after the conclusion of an agreement.

Article 5: Payment

  1. The supplier must provide DO-IT with an itemised and transparent invoice. The invoice must in any event state the agreement in question, the order number and the product number, as well as the number of goods delivered and the unit price. DO-IT may suspend payment if these conditions are not met.
  2. DO-IT pays the supplier’s invoices within ninety (90) days after acceptance of the goods, unless a different credit period is agreed in writing.
  3. For the purposes of Article 5.2, the supplier must send DO-IT an invoice no later than ten days after acceptance of the goods. The supplier’s claim, if any, lapses if that invoice is not received within three months after acceptance of the goods or after completion of the assignment by the supplier. DO-IT undertakes to inform the supplier within one week after receipt of the invoice of the amount of any disputed claims.
  4. DO-IT may set off any amount payable at any time (immediately or not) by DO-IT or by a company affiliated with DO-IT to the supplier under any agreement against any amount payable by the supplier or a company affiliated with the supplier to DO-IT or a company affiliated with DO-IT.
  5. DO-IT may suspend payment if it establishes a defect of the goods or any other breach of contract.
  6. By paying an invoice DO-IT does not waive any rights under the law or the agreement.
  7. The maximum interest rate payable by DO-IT if it fails to pay any amount to which the supplier is entitled is the one-month Euribor rate, subject to a mark-up of 0.5%.
  8. If the goods are paid for in advance, the ownership of the goods passes to DO-IT immediately. The supplier must store and preserve such goods properly packaged, separately and recognisably, take all measures required to prevent loss of quality, and secure and insure the goods until the moment of actual delivery.

Article 6: Delivery and acceptance

  1. Insofar as the parties have not agreed on other delivery conditions in writing, the supplier must deliver the goods to DO-IT Delivered Duty Paid (DDP) in accordance with the Incoterms 2010. The ownership of and risk in the goods passes to DO-IT immediately after signature of the delivery receipt.
  2. Before dispatch, the supplier must provide DO-IT with an analysis with test results regarding the goods in question from which it is apparent that the goods meet the specifications of the order and are in compliance with Regulation (EC) No 834/2007 and Regulation (EC) No 889/2008. It must in any event be apparent from the test results that the goods do not contain any products or substances that are not permitted by the European Commission for organic agriculture or processing under Regulation (EC) No 834/2007. The goods may be dispatched only if DO-IT accepts the test results. If DO-IT does not accept the test results, DO-IT will not take delivery of the goods and may cancel the delivery free of charge or demand replacement goods.
  3. Delivery times stated by the supplier are strict deadlines, unless otherwise expressly agreed in writing. In the event of late delivery, the supplier is therefore in default without any written notice of default being required and DO-IT may dissolve (ontbinden) the agreement, among other things.
  4. If DO-IT is not reasonably able to take delivery of the products, the supplier will store them for the supplier’s account and risk for a period yet to be agreed on, not exceeding sixty days (see also Article 6.7).
  5. Partial delivery, the delivery of greater or smaller quantities that those agreed, and delivery before the end of the agreed delivery period are permitted only with DO-IT’s prior written consent. The first delivery or performance does not lead to any change in the agreed time of payment. The supplier bears the risk in any excess quantities delivered that are stored at DO-IT, until agreement is reached on what must be done with them. All costs related to the storage of excess quantities delivered are payable by the supplier, unless otherwise agreed in writing.
  6. If the supplier is or could be aware that it is likely that goods will not be delivered in time, it must notify DO-IT accordingly, both in writing and by telephone, as soon as possible but no later than 24 hours after it is or could have been aware of such late delivery, stating the cause of the delay and the measures proposed by the supplier to prevent or reverse the delay or imminent delay, without prejudice to DO-IT’s rights regarding the late delivery under the agreement or under the law (such as its right to timely delivery, alternative compensation or dissolution (ontbinding) of all or part of the agreement.
  7. The supplier warrants that the products will be properly packaged (also with a view to transport, unloading and storage) and that any instructions given by DO-IT regarding packaging and delivery will be followed. The supplier is liable for damage caused by unsound packaging. All packaging must state a Skal number.
  8. The supplier warrants that the goods will at all times be stored and transported in conditions that safeguard their quality and in any event meet all statutory requirements.
  9. Acceptance of goods does not stand in the way of later reliance by DO-IT on non-conformity of the goods or non-performance by the supplier of its obligations.
  10. Damage to and loss of goods during unloading are for the supplier’s account and risk. The risk in the goods does not pass until the moment of completion of the delivery. That is the moment at which the product is delivered or the service is provided in its entirety and in accordance with the agreement, at the place designated by DO-IT.
  11. DO-IT may postpone a delivery by written notice to the supplier.
  12. On delivery, the supplier must provide DO-IT with all the information required for the processing and use of the goods and with all the prescribed records and certificates.
  13. DO-IT is in no event liable for any loss incurred by the supplier as a result of rejection or late acceptance of the products by DO-IT.
  14. The ownership of and risk in the goods passes to DO-IT on their delivery and acceptance, except in the case of payment in advance as referred to in Article 5.8.
  15. Unless otherwise agreed in writing, quantities stated in framework agreements are quantities that the supplier keeps in stock for DO-IT on a call-off basis. The obligation to take delivery of and pay for those goods does not arise until the call-off order is placed.

Article 7: Warranties

  1. The supplier in any event warrants that the goods, including their packaging, and the services, if applicable:
  • are sound and entirely suitable for their intended purpose;
  • are organic (in accordance with Regulation (EC) No 834/2007 and Regulation (EC) No 889/2008 or in accordance with the USDA National Organic Program);
  • meet the strictest statutory requirements and other government regulations of the country for which the products or services are intended, and the strictest safety, quality and environmental requirements that apply within the sector, all the above as they apply on the date of delivery. In particular, the goods must meet the Skal, NOP, EcoSocial and BIOKAP quality standards and certification requirements;
  • meet the specifications that form part of the agreement and, if applicable, are in compliance with the instructions, samples, pictures and descriptions provided by the supplier (and possibly approved by DO-IT);
  • state a correct and clearly legible best-before or use-by date; unless otherwise provided, unprocessed products such as fruit and vegetable need not state a best-before or use-by date;
  • display all mandatory information and (if applicable) are accompanied by correct instructions for use;
  • are state-of-the-art in terms of health, hygiene, safety and technique;
  • have been produced using raw materials whose origin is traceable:
  • have been produced in accordance with correct hygiene and a sound HACCP system;
  • are free of foreign objects, contamination and harmful substances (in accordance with Regulation (EC) No 1881/2006 as amended by Regulation (EU) No 1259/2011);
  • are in accordance with Regulation (EC) No 834/2007 and Regulation (EC) No 889/2008 regarding residues of pesticides, as explained in the guidelines of the Bundesverband Naturkost Naturwaren (BNN);
  • are not irradiated;
  • do not contain any ingredient or additive of or produced using genetically manipulated organisms or their derivatives, and that all reasonable measures have been taken to avoid contamination with genetically manipulated organisms or their derivatives;
  • do not infringe any third-party rights (including intellectual property rights);
  • are packaged in suitable packaging material (Food Grade) and are clean and undamaged; and
  • are unencumbered and free from attachments.
  1. In addition to paragraph 1 of this article, the supplier warrants that it has the organic certificates required by DO-IT and that the goods are produced in accordance with the FSSC 22000 and ISO 22000 principles.
  2. The supplier indemnifies DO-IT against any third-party claims on the grounds of defects of the goods or services and against any loss incurred by DO-IT as a result of any defect.
  3. The supplier declares that it is familiar with all statutory requirements and other regulations that apply to it and to the goods, and warrants that it will comply with those requirements and regulations and that the goods will meet those requirements and regulations at all times, including the relevant permits and permission prescribed by the authorities.
  4. Goods are in any event not in compliance with the requirements set out in Regulation (EC) No 834/2007 and Regulation (EC) No 889/2008 regarding residues of pesticides if a control authority or control body as referred to in Regulation 889/2008 decides to decertify the product supplied by the supplier in the Netherlands or one of the other EU Member States, unless that is due to actions performed by or on behalf of DO-IT in respect of the products sold.
  5. The supplier may not change product specifications without DO-IT’s prior written consent.
  6. If the competent authority requests further information in a control carried out in respect of a product supplied by the supplier, the supplier must provide all the necessary information at DO‑IT’s first request.
  7. The supplier acknowledges that DO-IT may be obligated to inform the competent authority in the event of doubt as to whether the product complies with the applicable public law regulations; if DO‑IT reports possible non-compliance to the competent authority, it will also immediately inform the supplier.
  8. If the supplier is located outside the European Union and is able to supply the sold products as organic products because the country in which it is located is approved as an equivalent third country, the possible withdrawal or termination of that approval as an equivalent third country is for the supplier’s account and risk.

 

Article 8: Inspection

  1. DO-IT may at any time inspect the goods, or arrange for their inspection by a third party, during production, processing, storage and delivery, and after delivery, in a manner that DO-IT considers necessary.
  2. An inspection in no event constitutes purchase, acceptance or delivery. Approval does not release the supplier from its obligations.
  3. Approval of a batch does not imply approval of another batch.
  4. If DO-IT finds that the goods are not in conformity with the agreement in any manner, it may reject the goods by written notice to the supplier.
  5. If goods delivered are rejected, the supplier is informed accordingly in writing. The supplier must then arrange as soon as possible for repair or replacement of the goods delivered. If timely repair or replacement by the supplier is not possible in DO-IT’s opinion, DO-IT may purchase the goods from a third party or may take measures itself or have measures taken by a third party for the supplier’s account and risk, in which case the agreement is dissolved (ontbonden), without prejudice to the other rights vested in DO-IT under these General Conditions or under the law.
  6. Rejected goods are deemed never to have been accepted by DO-IT and never to have been delivered to DO-IT. The ownership of and risk in rejected goods are deemed never to have passed to DO-IT.
  7. If the supplier fails immediately after a demand from DO-IT to take back the goods delivered by the supplier but rejected by DO-IT, DO-IT may return the goods to the supplier at the supplier’s expense or, at DO-IT’s option, may have them destroyed.
  8. If a sample or part of a batch falls short of DO-IT’s expectations, that constitutes breach of contract in respect of the entire batch, in which case DO-IT has the rights set out in Articles 10 and 11 in respect of either that batch or the entire agreement.
  9. The supplier will periodically allow DO-IT or its representative(s) to control or inspect the production, the quality of the materials used, the facilities and all related matters. For that purpose the supplier will give DO-IT and/or its representative(s) access to the places where the goods are or were produced or stored, will cooperate in the desired inspections, controls and tests, and will provide the necessary documentation and information at its expense. Refusal to cooperate constitutes breach of contract.
  10. If, regardless of the outcome of an inspection, control or test, it is established that the goods are not in conformity with Article 7 of these General Conditions or are in any other manner not in conformity with the agreement, the supplier will, at DO-IT’s option and at its first request, repair or replace the goods at the supplier’s expense, unless DO-IT wishes to terminate the agreement in accordance with Article 16.

 

Article 9: Complaints

  1. In the event of immediately visible defects, DO-IT undertakes to file a complaint within ten working days after delivery of the goods by the supplier. A complaint period of ten working days applies to defects that are not immediately visible, commencing on the day after the defect is established by DO-IT or any third party.

 

Article 10: Liability and indemnity

  1. The supplier is liable for any loss incurred by DO-IT, its staff, direct and indirect customers or other third parties that is directly or indirectly due to breach of contract by the supplier or by a party engaged by the supplier in the performance of the agreement. This paragraph is also a third-party clause within the meaning of Section 6:253 of the Dutch Civil Code. This provision cannot be revoked by the supplier and is made for no consideration for the benefit of every third party.
  2. The supplier is liable for its employees and for any third parties engaged by the supplier in respect of the performance of its obligations towards DO-IT.
  3. The loss for which the supplier is liable includes both direct loss (such as damage to property) and indirect loss or consequential loss (such as loss of turnover). This loss includes the judicial and extrajudicial costs actually incurred by DO-IT in respect of the work involved in demanding or safeguarding performance.
  4. The supplier must take out adequate insurance at a reputable insurance company, acceptable to DO-IT, against the customary risks, including but not limited to fire, theft, water damage, product liability and other forms of liability.
  5. The supplier unconditionally and irrevocably authorises DO-IT also in the supplier’s name and at the supplier’s expense to take the measures that DO-IT considers appropriate in the event of complaints regarding the goods delivered or to be delivered by the supplier that have not been processed by DO-IT (for instance with recall options).
  6. The supplier indemnifies DO-IT against any third-party claims related to alleged infringement of third-party intellectual property rights in respect of the goods delivered or to be delivered. The supplier undertakes to assist DO-IT both in and out of court in this regard.
  7. The supplier indemnifies DO-IT against any claims from its customers regarding non-delivery, late delivery or defective delivery by DO-IT to those customers as a result of non-delivery, late delivery or defective delivery by the supplier to DO-IT.
  8. DO-IT is not liable for any loss incurred by the supplier, except in the event of intent or gross negligence on the part of DO-IT’s management board or managerial staff.
  9. Without prejudice to Article 10.8, any liability of DO-IT for consequential loss or other indirect loss is expressly excluded.

 

Article 11: Default/dissolution (ontbinding)

  1. DO-IT may dissolve (ontbinden) the agreement with immediate effect and without any notice being required and may suspend the performance of its obligations under the agreement in whole or in part in the following cases, among others:
  • if an event as referred to in Article 6.3 occurs;
  • in the event of non-performance, late performance or improper performance of any other obligation by the supplier;
  • if the supplier or the party that guarantees its obligations or has provided security is put into liquidation, ceases its operations or adopts a resolution to that effect, is declared bankrupt, files a petition in bankruptcy or is granted a suspension or a provisional suspension of payment, or if the Wet schuldsanering natuurlijke personen (Natural Persons Debt Rescheduling Act) is declared applicable to the supplier;
  • if the supplier’s shareholders change, insofar as that circumstance constitutes a significant increase in risk in DO-IT’s reasonable opinion;
  • if attachment is levied on all or part of the supplier’s assets that are intended or required for the performance of the agreement;
  • if permits or certificates of the supplier regarding the goods or the production of the goods are withdrawn, are temporarily blocked or suspended, or are otherwise not or no longer valid; or
  • if DO-IT believes on reasonable grounds that the supplier will be in breach of contract.

In that case DO-IT must repay the supplier only the pro rata price of the goods already delivered or the or services already provided, and only insofar as those goods delivered or services provided are actually of use to DO-IT or DO-IT wishes to keep the goods delivered, all the above without prejudice to DO-IT’s entitlement to compensation.

  1. All of DO-IT’s claims against the supplier are immediately payable in their entirety in each of the cases set out in Article 11.1.
  2. Dissolution (ontbinding) of the agreement by DO-IT is without prejudice to its other rights, including its entitlement to compensation.

 

Article 12: Force majeure

  1. The supplier must immediately inform DO-IT in writing of any event of force majeure on its part, stating the reason for the force majeure.
  2. In the event of force majeure on the part of the supplier, DO-IT may suspend its obligations towards the supplier in whole or in part, or dissolve (ontbinden) the agreement in whole or in part, without being liable towards the supplier for any loss or costs.
  3. Force majeure on the part of the supplier does not include non-performance or late performance by a third party of the obligations that it has undertaken towards the supplier, staff shortages, strikes, staff sickness, lack of raw materials, transport problems, breach of contract or non-performance of obligations by sub-suppliers, production disruption at the supplier, liquidity or solvency problems of the supplier, animal and plant diseases, food scandals, epidemics, and situations involving changes in the law or regulations.

 

Article 13: Intellectual property

  1. All intellectual property rights, for instance regarding specifications, formulas, procedures, texts, descriptions (both original and amended), data (including all amended data) and other publicity materials, trade names and brand names, etc., that are provided to the supplier by DO-IT or that come into the supplier’s possession in the performance of the agreement, are and remain vested in DO-IT. DO-IT is also regarded as the maker and designer, regardless of whether a fee was agreed in that regard.
  2. The supplier may use the information provided by DO-IT, but only for the purpose of and during the term of the agreement and unless the information is withdrawn by DO-IT. DO-IT is and remains the owner of that information.

Article 14: Confidentiality

  1. The supplier must keep confidential the existence, nature and content of the agreement and all other company information of DO-IT that comes to its attention or is brought to its attention in any manner and may not disclose any of that information without DO-IT’s prior written consent.
  2. The supplier must impose this duty of confidentiality on its employees and subordinates and on any agents engaged. This provision also constitutes a third-party clause for the benefit of DO‑IT.
  3. Without DO-IT’s prior written consent, the supplier may not use DO-IT’s name, trademarks and trade names or DO-IT’s intellectual property rights in advertising and other publications or for any other purpose.
  4. Without prejudice to the other rights vested in DO-IT under these General Conditions or under the law, the supplier forfeits to DO-IT on breach of the provisions in the preceding paragraph an immediately payable penalty in the amount of EUR 50,000 per breach and EUR 1,000 per day on which the breach continues. This penalty is without prejudice to DO-IT’s right to claim full damages from the supplier.

Article 15: Items and information provided

  1. The supplier cannot base any rights on items or information provided by DO-IT.
  2. Any items provided to the supplier by DO-IT remain DO-IT’s property. The supplier must store them separately at all times from items that belong to the supplier itself or to third parties. The supplier must mark the items provided by DO-IT as property of DO-IT for the supplier’s account and risk, keep them in a good state of repair, insure them against all risks and use them only for the purpose for which they were provided.
  3. At DO-IT’s first request, the items provided by DO-IT must immediately be returned to DO-It in a good state of repair.
  4. If items provided by DO-IT are used in or processed into goods of the supplier, those goods become DO-IT’s property or the supplier must immediately transfer the ownership of those goods to DO-IT and inform DO-IT accordingly.
  5. The intellectual property rights in items or information made available by DO-IT remain vested in DO-IT, also on termination of the agreement.

Article 16: Termination

  1. DO-IT may terminate a fixed-term or open-ended agreement for any reason, subject to a reasonable notice period. DO-IT is in no event liable for any damages or compensation.

Article 17: Other provisions

  1. Without DO-IT’s prior written consent, the supplier may not have the goods produced, packaged or processed by a third party and may not have the services provided by a third party. DO-IT’s written consent does not release the supplier from any obligation or liability arising from the acceptance of the agreement or the order.
  2. The supplier cannot assign or pledge its claims against DO-IT (within the meaning of Section 3:83 of the Dutch Civil Code).

Article 18: Governing law and competent court

  1. All agreements entered into with DO-IT to which these General Conditions apply are governed exclusively by Dutch law. The Vienna Sales Convention and similar conventions do not apply.
  2. All disputes arising from the agreements entered into between DO-IT and the supplier, including these General Conditions, will be settled in accordance with the Arbitration Regulations of the Netherlands Arbitration Institute.
  3. The arbitral tribunal that settles a dispute as referred to in paragraph 2 of this article will consist of one or three arbitrators appointed on the basis of the list procedure. The place of arbitration is ’s-Hertogenbosch, the Netherlands, and the proceedings will be conducted in the Dutch language.