General terms and conditions of sale, delivery, and payment of TakeAware B.V., incorporated in Groningen, with its registered office at Van Kerckhoffstraat 2, (9714 BN) Groningen, registered with the Kamer van Koophandel in Groningen under number 78261465, filed with the Kamer van Koophandel in Groningen under the aforementioned number.

 

Article 1 - General

1.1 In these general terms and conditions ("General Terms and Conditions"), the following terms shall have the following meanings:

- TakeAware: TakeAware B.V. and all its subsidiaries and any user of these General Terms and Conditions.
- Customer: any natural person or legal entity negotiating the conclusion of an Agreement with TakeAware and/or entering into an Agreement with TakeAware regarding the delivery of Products by TakeAware.
- Agreement: an agreement between the Customer and TakeAware pursuant to which TakeAware supplies Products, under any title whatsoever.
- Products: goods, services, usage rights, and/or advice, in the broadest sense.
- Written: written and/or electronic;
- Day(s): calendar day(s).

1.2 These General Terms and Conditions apply to all offers, quotations, order confirmations, Agreements, and all related (legal) acts of TakeAware and the Customer. In the event of any inconsistency, the Agreement shall prevail over the General Terms and Conditions.

1.3 The applicability of the Customer's general terms and conditions, by whatever name, is expressly rejected by TakeAware.

1.4 Invalidity or inapplicability of one or more provisions contained in these General Terms and Conditions, or part thereof, shall not affect the operation and validity of the remaining provisions.

1.5 If TakeAware does not insist on strict compliance with these General Terms and Conditions, it does not waive the right to demand strict compliance at a later time or in another case.

1.6 If one or more provisions of the General Terms and Conditions are not compatible with the type of Agreement to which the General Terms and Conditions have been declared applicable, the remaining General Terms and Conditions shall remain in full force and effect.

1.7 TakeAware is entitled to unilaterally amend the General Terms and Conditions, which amended General Terms and Conditions shall apply from the announced date and after the amended General Terms and Conditions have been sent to the Customer.

1.8 Deviations from these General Terms and Conditions and from the Agreement are only valid if and to the extent that they have been expressly and in writing recorded by (an authorized representative of) TakeAware and shall remain valid until revoked by TakeAware.

 

Article 2 - Establishment of Agreements

2.1 All offers, quotations, order confirmations and statements made by or on behalf of TakeAware are only addressed to the Customer, may not be distributed, count as one whole and cannot be accepted in part, are entirely without obligation, even if they contain a term for acceptance, and can be revoked by TakeAware at any time, even after acceptance by the Customer. The data contained therein (including but not limited to images, color schemes, sizes and weights of the Products) are for indication and indication only.

2.2 An Agreement is only concluded if a Written Agreement signed by both parties is concluded, or if TakeAware sends a Written order confirmation to the Customer, which order confirmation in such a case counts as a correct and complete representation of the Agreement that has been concluded. between TakeAware and the Customer.

2.3 Additions to or changes to the Agreement, including the General Terms and Conditions applicable to it, only apply if and insofar as they have been laid down In Writing.

2.4 If no Written Agreement has been concluded and no Written order confirmation has been sent by TakeAware, the parties will nevertheless be bound if TakeAware starts performing the Agreement. In that case, the invoice from TakeAware will be regarded as the buyer's order and as the correct representation of the Agreement between TakeAware and the Customer.

2.5 If the Customer does not accept an offer or quotation from TakeAware, TakeAware has the right to charge all costs involved to the Customer.

2.6 The Customer is not entitled to cancel the Agreement in whole or in part. If the Customer nevertheless proceeds to full or partial cancellation, TakeAware will remain entitled to charge the entire amount involved in the Agreement.

 

Article 3 - Prices and payment

3.1 TakeAware usually quotes its prices in Euros, including transport costs in the Benelux and excluding VAT, but the Customer may not automatically assume this. In cases where this is not expressly apparent from the Quotation or the Agreement, the Customer must assume that the offered and agreed prices are in Euros and exclusive of VAT and transport costs. Other costs and taxes, levies and duties due by law are not included in the price and are for the account of the Customer. The Customer bears the exchange rate risk in the event of payment in foreign currency.

3.2 TakeAware will invoice per delivery as a starting point, but is entitled to invoice periodically, partially or in advance at its own discretion.

3.3 TakeAware is authorized to unilaterally adjust the prices if the costs on the basis of which the prices have been determined have increased. These include, but are not limited to, costs of raw materials, purchasing, transport, electricity, gas, (semi-)manufactured products and products obtained from third parties, personnel, social security costs, extra costs due to exchange rate changes, introduction of new or increase of existing levies and government taxes. TakeAware will notify the Customer in Writing of price increases. 3.4 Unless otherwise agreed, payments must be made within 10 (ten) Days after invoice date. All payment terms are fatal. The Customer shall pay the invoiced amounts without deductions, discounts or settlements and is not entitled to suspend any payment obligation towards TakeAware.

3.5 TakeAware is at all times authorized to demand an advance payment from the Customer, or any form of security, including but not limited to rights of pledge and bank guarantees.

3.6 TakeAware is, in addition to the methods of set-off regulated by law, authorized to set off its claims against and debts to the Customer against debts to or claims against companies affiliated with the Customer.

3.7 If the payment term is exceeded, discounts granted to the Customer will lapse, the Customer will immediately be in default and all claims of TakeAware against the Customer, for whatever reason, will be immediately due and payable. Furthermore, from the due date of the invoice, the Customer owes interest of 2.0% per (part of a) month on the outstanding amount until the moment of payment of the amount due. In addition, late arrivals payment of all judicial and extrajudicial costs for collection of the amount owed at the expense of the Customer. The extrajudicial collection costs are set at 25% of the principal sum, including VAT, with a minimum of € 250, without prejudice to TakeAware's right to demand reimbursement of the actual costs if these costs are higher.

3.8 Complaints regarding an invoice must be submitted to TakeAware In Writing within 5 (five) Days after the invoice date. After this period, complaints will no longer be processed and the Customer has forfeited its right to complain.

3.9 The Customer is not authorized to suspend payments or other obligations, or to set them off against any claims against the Seller, not even if a complaint turns out to be well-founded.

 

Article 4 - Delivery and delivery time

4.1 Deliveries are made ex-works (Incoterms 2010) from TakeAware's business address, or at another place to be designated by TakeAware. If the transport to the Customer
is organized or paid for by TakeAware, this is nevertheless at the risk of the Customer.

4.2 TakeAware is entitled to perform the Agreement in various phases or deliveries.

4.3 Agreed delivery times cannot be regarded as strict deadlines within the meaning of Article 6:83 under a of the Dutch Civil Code. If the delivery time is exceeded, or if it becomes clear that it will exceed the delivery time, TakeAware strives to inform the Customer about the estimated period by which the delivery time will be extended. If the delivery time is exceeded, the Customer is not entitled to any compensation or dissolution, except in the case of intent or gross negligence on the part of TakeAware. If the Customer gives TakeAware notice of default, this must be done in writing, whereby the term for
three (3) months.

4.4 If TakeAware requires data and/or tools for the implementation of the Agreement that must be provided by the Customer, or the satisfaction of another obligation resting on the Customer under the Agreement, the delivery period will never start before the day on which all necessary data and/or tools are in the possession of TakeAware or that the Customer has fulfilled the aforementioned obligation towards TakeAware, or the delivery term will be extended in accordance with the foregoing.

4.5 The Product is in any case deemed to have been delivered by the Customer or any other recipient taking the Products into use, as well as by the Customer or any other recipient signing the consignment note or order form.

4.6 If the Customer does not take delivery of the Products or does not take them in time, he will be in default without notice of default. In that case, TakeAware is entitled to store the Products at the expense and risk of the Customer or to deliver the Products as yet. The Customer continues to owe the amounts due under the Agreement, plus interest and costs (by way of compensation).

4.7 With regard to the quantity of Products ordered, an over or under delivery of 10% (ten percent) may occur, which over or under delivery must be accepted by the Customer. In the event of an additional delivery within the aforementioned percentage, TakeAware is entitled to charge the Customer additionally for the additional delivery.

 

Article 5 - Stock

5.1 TakeAware maintains a stock at its own discretion in order to meet the purchase of agreed volumes, or to comply with the regular (expected) purchase behavior of the Customer (even if this exceeds any agreed volumes). In the case of continuing performance agreements, TakeAware is free to build up stocks for the entire duration of the Agreement.

5.2 If, for whatever reason (foreseen or unforeseen), the Customer does not wish to purchase the Products kept in stock, it must indemnify TakeAware for this.

 

Article 6 - The execution of the Agreement

6.1 To enable the proper performance of the Agreement by TakeAware, the Customer must always deliver or make available to TakeAware all facilities, data and information that are necessary or useful for the proper performance of the Agreement in a timely and correct manner. The Customer guarantees the correctness, timeliness, completeness and reliability of the data and information provided by the Customer to TakeAware.

6.2 TakeAware is authorized to issue orders to third parties for the performance of the Agreement, also on behalf of and at the expense of the Customer.

6.3 The Customer is obliged to have all permits, exemptions and other decisions required for the performance of the Agreement available in good time.

6.4 Customer's rights arising from this Agreement and the underlying agreements cannot be transferred without the prior written consent of TakeAware. This provision applies as a clause with property law effect as referred to in Article 3:83 paragraph 2 of the Dutch Civil Code.

6.5 The Customer shall not outsource the performance of the obligations under the Agreement and the underlying purchase agreements to third parties, either wholly or in part, without the prior written consent of TakeAware. TakeAware's consent does not release the Customer from the obligations under this Agreement. The Customer indemnifies TakeAware against claims from third parties as a result of outsourcing the performance of the obligations under the Agreement or the underlying agreements to third parties.

 

Article 7 - Designs, typesetting, printing and other proofs

7.1 If agreed, TakeAware will print the Products according to a design of the Customer.

7.2 The Customer may also request TakeAware to produce a design. The costs for this are at the expense of the Customer, unless agreed otherwise. The design will be done on the instructions of the Customer, whereby TakeAware may rely on the information and examples provided by the Customer. The Customer guarantees and indemnifies TakeAware that the logos, documents, drawings and designs it provides are its intellectual property.

7.3 All design drawings, moulds, moulds, pressure rollers, etc., whether or not at the request of the Customer, made by or on our behalf, even if these have been or will be charged to the Customer in full or in part, remain the property of TakeAware.

7.4 If an order is not placed after a requested quotation, the costs of a design made for this and any resources and materials already produced may be charged by TakeAware to the Customer. The other party is obliged to pay these costs.

7.5 Before printing the Products according to a design of the Customer or according to a design approved by it, a printing proof will be submitted to the Customer in advance for assessment.

7.6 The Customer is obliged to carefully examine the typesetting, printing or other proofs received from TakeAware for inaccuracies, imperfections or other defects and to return these corrected or approved to TakeAware without delay, but no later than within five (5) Days.

7.7 Approval of the tests by the Customer counts as acknowledgment and confirmation that TakeAware has correctly performed the work prior to the tests. TakeAware is not liable for deviations, errors and defects that have gone unnoticed in proofs approved or corrected by the Customer.

7.8 Any typesetting, printing or other proofs produced at the request of the Customer, and the materials used therefor, may be charged by TakeAware in addition to the agreed price, unless it has been expressly agreed that the costs of these proofs are included in the price.

7.9 TakeAware cannot guarantee that the final printing result with regard to the Products fully corresponds to the color (codes) specified by the Customer or the type, printing or other proofs approved by the Customer.

 

Article 8 - Retention of title

8.1 The ownership of Products delivered by TakeAware only transfers to the Customer after the Customer has paid in full all that it owes TakeAware under any agreement or otherwise.

8.2 If and as long as TakeAware is the owner of the Products, the Customer is not entitled to sell, rent out or give them for use, pledge or otherwise encumber them, other than in the normal course of business.

8.3 TakeAware is entitled to unimpeded access to the Products it owns. The Customer will fully cooperate with TakeAware in order to enable TakeAware to exercise the retention of title included in Article 8.1 by taking back the Products, including any disassembly required for this purpose.

8.4 If and as long as TakeAware is the owner of the Products, the Customer will immediately inform TakeAware if they are (threatened to be) seized or if (any part of) the Products are otherwise claimed. The Customer must also expressly point out the (property) rights of TakeAware to the third party.

8.5 The Customer is obliged to insure the Products delivered to it under retention of title and to keep them insured against damage and theft and to provide access to the relevant policies at TakeAware's first request.

 

Article 9 - Complaints and advertising

9.1 TakeAware guarantees that the Products comply with any specifications issued upon delivery and that, at the time of concluding the (initial or framework) agreement, they comply with the industry's usual requirements and standards for the use of the Product within the Netherlands. Only substantial deviations from the drawings, technical descriptions, images, colors, measurements, weight specifications, material specifications, numbers, schedules, actions, route descriptions and anything else that have been agreed in Writing will entitle the Customer to a complaint, replacement, compensation for damage or any other straight.

9.2 The Customer cannot derive any rights from information and advice provided by TakeAware that does not relate to the Agreement or the Products.

9.3 Complaints regarding observable defects (in quality or quantity) must be made, under penalty of forfeiture of rights, immediately after discovery, but no later than within five (5) Days after delivery of the Products by registered letter and stating the reasons. Complaints about non-observable defects must be made immediately, under penalty of forfeiture of rights, but at the latest within 5 (five) Days after the discovery by registered letter and stating the reasons.

9.4 A complaint must at least contain a detailed and accurate description of the defect as well as a statement of further information from which it can be deduced that the goods delivered and those rejected by the Buyer are identical.

9.5 If the complaints concern part of the delivered goods, this cannot be a reason for rejection of the entire batch, unless the delivered batch cannot reasonably be regarded as usable in such a case.

9.6 The mere fact that an advertisement is investigated does not automatically imply that TakeAware acknowledges any liability in this respect.

9.7 Legal claims must be brought within 1 (one) year after the timely complaint, under penalty of forfeiture.

9.8 TakeAware cannot be held liable for defects caused by incorrect use or storage of the Product or by actions, including in any case adjustments, modifications, assembly, repair and transport of the Product, not performed by TakeAware. Nor can TakeAware be held liable for defects resulting from accidents, which cannot be attributed to TakeAware.

9.9 Provided that a complaint has been made in accordance with the provisions of this article and on justified grounds, TakeAware will supply a replacement Product free of charge against the return of the Products that have proven to be faulty, or repair the Products in question free of charge, at TakeAware's discretion. TakeAware reserves the right to supply similar Products. By fulfilling one of the aforementioned performances, TakeAware is fully discharged of its (warranty) obligations.

9.10 In the event of an unjustified complaint, the costs involved will be borne by the Customer.

 

Article 10 - Liability

10.1 TakeAware is not liable for damage suffered by the Customer or third parties, except insofar as this damage is the direct result of intent or willful recklessness on the part of TakeAware.

10.2 Without prejudice to the provisions of the previous paragraph, TakeAware's liability towards the Customer is in all cases limited to the amount paid out under TakeAware's liability insurance policies. Insofar as, for whatever reason, the insurer does not pay out, TakeAware's liability is limited to a maximum of EUR 10,000 per year.

10.3 TakeAware is under no circumstances liable for indirect damage such as consequential damage, delay damage and loss of profit or turnover.

10.4 The Customer shall indemnify TakeAware against all third-party claims, directly or indirectly related to (the use of) the Products, and shall compensate TakeAware for all damages suffered by TakeAware as a result of such claims.

 

Article 11 - Force majeure at TakeAware

11.1 If TakeAware is prevented from fulfilling its obligations towards the Customer due to force majeure, the term within which TakeAware must fulfill its obligations will be extended. In addition to what is understood by it in the literature and jurisprudence, force majeure is in any case understood to mean any circumstance independent of the will of TakeAware, such as but not limited to fire, natural disasters, epidemics and pandemics, illness of persons employed by TakeAware, strikes, new or revised laws and regulations including guidelines and instructions, measures taken by the government, breakdown of machines and/or malfunctions, the lack of the necessary raw materials, materials, workers, semi-finished products, equipment, fuel or transport, trade, import , export and transport restrictions, all this both if these occur at the TakeAware company and at (sub)suppliers. If and insofar as TakeAware, at its own discretion and/or on the instructions of (government) authorities, takes (security) measures to prevent or limit the above circumstances, and these measures
restrict TakeAware in the fulfillment of its obligations towards the Customer, then taking these measures qualifies as an independent force majeure situation.

11.2 If the force majeure situation implies that there is limited stock or limited production capacity, TakeAware is free to distribute the stock or capacity among its customers at its own discretion.

11.3 If the force majeure situation has lasted longer than six months, or if it has been established that it will last longer than six months, TakeAware has the right to dissolve the Agreement before the part that has not yet been fulfilled by TakeAware.

11.4 In the event of force majeure, the Customer is not entitled to compensation.

 

Article 12 - Suspension, dissolution and termination

12.1 TakeAware can terminate an Agreement that has been entered into or created for an indefinite period at any time with due observance of the agreed cancellation rules or by applying a notice period of no more than one month.

12.2 If the Customer fails to fulfill any obligation towards TakeAware, or if TakeAware may reasonably expect that the Customer will fail to fulfill any obligation towards TakeAware, TakeAware has the right to postpone the (further) performance of its obligations under the Agreement. suspend by means of a Written notification, without TakeAware being obliged to pay any compensation, all this without prejudice to its other rights.

12.3 In the event that the Customer:

- Is declared bankrupt, is admitted to the Statutory Debt Rescheduling Scheme for Natural Persons, applies for his own bankruptcy or suspension of payments or admission to the Statutory Debt Rescheduling Scheme for Natural Persons, assigns his estate, or seizes (part of) his wealth is laid;

- Is placed under guardianship or otherwise loses the power to dispose of his assets or parts thereof;

- Discontinues or transfers his company or part thereof, including the contribution of his company to a company to be established or already existing, or changes the objective of his company;

- Dies;

- Does not, does not timely and/or does not properly comply with any obligation imposed on it by virtue of the law or on the basis of the Agreement or General Terms and Conditions; TakeAware is entitled to terminate the Agreement with immediate effect, without notice of default or judicial intervention, to dissolve in whole or in part by Written
notification, without prejudice to its other rights.

 

Article 13 - Intellectual property

13.1 All intellectual property rights with regard to the Products and the images that TakeAware offers, are vested exclusively in TakeAware or its licensors. The Customer acknowledges these rights and guarantees that it will refrain from any infringement thereof. The Customer is not permitted to reproduce, publish, copy, imitate and/or edit the Products and images of TakeAware, unless TakeAware has given its prior consent.

13.2 TakeAware indemnifies the Customer against claims against the Products delivered and/or provided by TakeAware with regard to claims from third parties based on infringement of intellectual property rights that are valid in the Netherlands, provided that the Customer (a) immediately informs TakeAware of the existence and the content of the legal claim; and (b) leaves the handling of the case, including reaching a settlement, entirely to TakeAware. To this end, the Customer will fully cooperate with the necessary formalities and, if necessary, allow TakeAware to defend these legal claims on behalf of the Customer. This obligation to indemnify lapses if the infringement is related to changes that the Customer has made or has had made to the Products, if the claim of a third party is related to image material offered by the Customer to TakeAware, as well as in the event of a violation of these General Terms and Conditions by the Customer.

13.3 If it is irrevocably established in court that the Products infringe an intellectual property right belonging to a third party, or if, in the opinion of TakeAware, there is a reasonable chance that an infringement will occur, TakeAware will, if possible, ensure that the Customer or can continue to use Products provided, for example by adjusting the infringing parts or by acquiring a right of use for the Customer. TakeAware also has the right - at its sole discretion - to take back the delivered goods against credit of the acquisition costs, less a reasonable usage fee. Any other or more far-reaching liability or indemnification obligation of TakeAware towards the Customer due to violation of intellectual property rights of a third party is excluded.

13.4 For certain Products, TakeAware offers the Customer the option of providing visual material, such as logos, photos and other images, which TakeAware prints on the Products. Such images are usually protected by intellectual property rights (of third parties), such as - but not limited to - copyright and trademark rights. The Customer guarantees that the image material offered to TakeAware can be lawfully printed by TakeAware on the Products and does not infringe any intellectual property rights of third parties. The Customer also guarantees that the image material offered is not contrary to public order and good morals.

13.5 The Customer indemnifies TakeAware and will fully indemnify TakeAware against all third-party claims related to the visual material offered by the Customer, as well as if the aforementioned guarantees are violated.

13.6 TakeAware reserves the right – exclusively at the discretion of TakeAware – to refuse visual material offered by the Customer. TakeAware also reserves the right to report this to the police if TakeAware suspects that the image material offered is punishable and/or criminal offenses are visible on the image material.

13.7 TakeAware is entitled to provide the Products with visible or invisible numbers or other types of codes in order to trace the origin of the Products.

 

Article 14 - Confidentiality

14.1 The Customer and its staff (whether or not hired in), as well as third parties engaged by the Customer and their staff (whether or not hired in), are obliged to keep secret all information of which the Customer knows or should reasonably know that it concerns confidential information and to to be used for the performance of the agreement.

14.2 Confidential information shall in any event include: personal data, data that can be traced back to clients of TakeAware, working methods and business data of TakeAware and the (intellectual) rights that underlie the Product made available by TakeAware and matters such as designs, concepts, advice, simulations, models, etc.

 

Article 15 - Disputes and applicable law

15.1 These General Terms and Conditions (including this article 14.1), as well as the Agreement, are exclusively governed by Dutch law. The applicability of the Vienna Sales Convention is hereby expressly excluded.

15.2 All disputes that may arise as a result of these General Terms and Conditions or the Agreement will be submitted exclusively to the competent court of the Northern Netherlands court, Groningen location, on the understanding that TakeAware has the right to bring claims against the Customer. before other courts having jurisdiction to hear such claims.