General Terms & Conditions of Sale - B2B
These General Terms and Conditions of Sale (hereinafter referred to as the “GTCS”) of GIMBER BV, having its registered office at 198 Nachtegaalstraat 1501 Halle, Belgium (hereinafter referred to as “GIMBER”) shall apply to orders for organic ginger concentrate sold by GIMBER under the brand name “GIMBER”, regardless of its packaging (hereinafter referred to as the “Products”). They shall apply to all orders placed by professionals, delivered and invoiced by GIMBER worldwide (hereinafter referred to as “BtoB”). These General Terms and Conditions of Sale, which supersede all previous general terms and conditions of sale of GIMBER, comprise, in addition to this document, which includes the terms and conditions of sale and payment of the Products, GIMBER’s prices, as communicated by GIMBER to the Customer and, where applicable, amended in accordance with Article 3 (hereinafter referred to as the “Prices”).
1. TERMS AND CONDITIONS OF NEGOTIATION
The GTCS shall be communicated to the Customer before its first order and shall be updated on an annual basis. Unless otherwise specifically agreed by and between the parties or provided by law, any new version of the GTCS communicated while the parties are already in a contractual relationship shall apply as of the month following the communication thereof.
In order to enable the negotiation of a contract between the Customer and GIMBER, any communication of general terms and conditions of purchase or any other unilateral document having a similar object as the GTCS by the Customer must be made within 15 days following the communication of the GTCS. Any contractual provision contrary to these GTCS shall be unenforceable against GIMBER without the latter’s prior written consent, irrespective of the time at which it was brought to GIMBER’s attention.
The specific agreement by and between the Customer and GIMBER shall be formalized in a contract and, where applicable, its amendments (hereinafter referred to as the “Agreement”). Any order placed by a Customer in the absence of an Agreement shall be tantamount to full and unconditional acceptance of the GTCS and shall be governed exclusively thereby, to the exclusion of any general terms and conditions of purchase, or any other unilateral document of the Customer with a similar object.
2.1 – Terms and conditions of validity for the orders
Unless the Customer and GIMBER have agreed to implement EDI, orders must be placed by e-mail to order@gimber. com. All orders must contain all the elements necessary for their processing, namely:
the EAN code of each Product ordered,
the quantities ordered for each Product (in number of units),
the desired place of delivery,
the date and, where applicable, the time of delivery desirable, in compliance with the minimum time limits indicated
in article 2.2 below,
the customer order reference number,
any special requirements, in particular with regard to packaging or palletization.
GIMBER reserves the right not to process an order which does not include the afore-indicated elements or which includes special requirements not referred to in the Agreement and which could not be met, without any penalty or sum of any kind whatsoever being applied, deducted, offset or invoiced in this respect. In such an event, GIMBER shall inform the Customer accordingly.
It is understood that deliveries may be made only on a business day. In addition, the desired delivery date indicated by the Customer in its order must be one on which the Customer will actually be able to receive the Products.
2.2 – Date on which orders are placed
2.2.1 - For the purposes of the application of this article, it is specified that orders must be placed from Monday to Friday, excluding holidays, before 12:00 noon. Any order received outside business days and/or after 12:00 noon shall be deemed to have been placed on the next business day.
2.2.2 - Orders for Permanent Products - The term “Orders for Permanent Products” refers to orders for Products offered for sale apart from Seasonal Products. Orders for Permanent Products must be placed at the earliest one 1 (one) month and, at the very least, 8 (eight) business days before the desired collection date.
2.2.3 - Orders for Seasonal Products - The term “Orders for Seasonal Products” refers to orders for Products sold under an offer with limited duration and stock (hereinafter referred to as the “Seasonal Offer”). Orders for Seasonal Products must be pre-ordered within 15 (fifteen) days of the dispatch of the Seasonal Offer and shall be delivered on the date or dates requested by Customer during the delivery period indicated by GIMBER in said Seasonal Offer.
GIMBER reserves the right to refuse any Orders for Seasonal Products that do not meet the aforementioned conditions. To the extent that stocks are available, GIMBER shall make its best efforts to satisfy these orders, provided that they are placed at least 8 (eight) days before the desired delivery date. Where applicable, GIMBER shall inform the Customer without delay, by e-mail, of the available quantities and delivery possibilities and no penalty or sum of any kind whatsoever may be applied, deducted, offset or invoiced to GIMBER.
2.2.4 - Abnormally Voluminous Orders - The term “Abnormally Voluminous Orders” refers to orders for Products whose volume is greater than the average volume of 1 (one) month of Products of the corresponding range ordered by the Customer during the last 6 (six) months preceding the order. Unless expressly agreed by GIMBER, Abnormally Voluminous Orders must be placed 30 business days prior to the desired delivery date.
In the event of an Abnormally Voluminous Order, GIMBER reserves the right to refuse the order or to delay the delivery of the Products ordered for the volume that exceeds the afore-mentioned average volume by 1 (one) month. In such cases, GIMBER shall inform the Customer without delay, by e-mail, of the delivery possibilities and other measures envisaged and no penalty or sum of any kind may be applied, deducted, offset or invoiced to GIMBER.
For the purposes of the application of the notion of Abnormally Voluminous Orders, GIMBER reserves the right to con- sider as a single Abnormally Voluminous Order, a set of orders for Products of the same range, placed through several delivery points of the Customer during 30 consecutive days, whose total volume would exceed the average volume of 1 (one) month of Products of the corresponding range ordered by the Customer during the last 6 (six) months preceding the beginning of the 30-day period.
2.2.5 - Orders for Discontinued Products - Any order for Discontinued Products shall be considered null and void even if GIMBER has not expressly refused the corresponding order within the 48-hour period referred to in Article 2.3. GIMBER shall do its best efforts to inform the Customer of the discontinuation of a Product 2 (two) months prior to the date of application. No penalty and no sum of any kind whatsoever may be applied, deducted, offset or invoiced to GIMBER in the event of an order for Discontinued Products.
2.3 – Acceptance of the order
Orders shall be binding for GIMBER only once they have been accepted by GIMBER by EDI or e-mail. Any order that is not refused or changed by GIMBER within 48 hours shall be considered as accepted.
Any order placed by the Customer and accepted by GIMBER may not be cancelled or changed for any reason whatsoever by the Customer, including the terms of delivery in particular, without GIMBER’s express prior consent. In the absence of GIMBER’s consent to the change or cancellation, (i) no penalty may be applied by the Customer to GIMBER in the event of an upward change, and (ii) GIMBER reserves the right to charge the Customer the price of the original order in the event of a downward change or cancellation of the order.
3. PRICES AND DISCOUNTS
Prices shall be quoted exclusive of VAT, rounded off to two decimals, inclusive of packaging. The prices shall be ex- works, and transport shall be invoiced by GIMBER at cost, unless otherwise specifically agreed by and between the Parties. Invoices shall be drawn up on the basis of the prices in force on the date of the order. Any change in tax shall be immediately reflected in the invoices without prior notification.
GIMBER reserves the right to change the Prices during the course of the year. Any variation of the Prices is notified by e-mail consistent with normal practice in the sector. The period of notice shall be generally two months and may be reduced in case of force majeure or an exceptional increase in raw material prices. Unless agreed otherwise by and between the parties, the new Prices shall be applicable for all orders placed after the expiry of the period of notice.
4.1 - Transport, unloading and transfer of risks - The choice of the carrier and the organization of the transport shall be the exclusive responsibility of GIMBER. Delivery shall be made at the place, date and time indicated by the Customer in the order as accepted by GIMBER, whereby delivery may take place only on a business day.
No penalties or sums of any kind may be applied, deducted, offset or invoiced to GIMBER in the following cases: (i) the carrier has arrived within one hour after the desired delivery time; (ii) the carrier has left the agreed delivery place 2 hours after arrival because the goods were not unloaded; (iii) in case of late delivery for a cause beyond GIMBER’s control
The Products shall be unloaded by the Customer, under his responsibility. In such a case, delivery shall be deemed to take place when the Products are made available to the Customer in the transport vehicle. The risks of the Products shall be transferred at the time of delivery.
4.2 - Use by date - GIMBER undertakes to comply with a “Use by” date (hereinafter referred to as “UBD”) of at least 6 months as of the date of delivery for each Product. This guarantee is limited to minimum 3 months concerning any Product that was launched by GIMBER less than a year ago. The day of receipt of the Products by the Customer shall be included in the total number of days that are still guaranteed. If the guarantee above is complied with, GIMBER reserves the right to deliver Products with different UBD or not in the chronological order of deliveries and shall not accept any penalty from the Customer in this respect.
The Customer undertakes not to offer for sale to the consumer Products with an expired UBD and such Products may not be taken back by GIMBER.
4.3 - Acceptance of Products - Upon delivery, the carrier shall provide the Customer with the transport slip and the delivery note. The Customer shall immediately return to the carrier the transport slip, duly stamped and signed, with the mention “for acceptance,” as well as the date and time thereof. The Customer may not refuse to accept Products corresponding to an order accepted by GIMBER in accordance with the provisions of Article 2.3 and processed in accordance with the GTCS.
It shall be the Customer’s responsibility to verify at the time of delivery, in the presence of the carrier, the respect of the delivery time, the good condition of the Products and the apparent conformity of the Products delivered to the ac- cepted order. The delivery date shall be the one indicated on the delivery note signed by the carrier and the Customer.
In the event of late delivery or of missing, erroneous, defective or damaged Products, the Customer must indicate clear, precise and complete reservations on the transport slip and confirm these reservations to the carrier by registered letter with acknowledgement of receipt within 3 (three) business days following delivery, specifying the order number, the Products concerned, the quantity and the reason for the complaint. A duplicate of this registered letter and the packing slip must be sent by e-mail to firstname.lastname@example.org within 3 (three) business days following delivery.
If the afore-described procedure is not complied with in the event of late delivery or lack of conformity, the delivery shall be deemed to be compliant with the order and the Customer’s complaint may not be processed by GIMBER. Con- sequently, the Products may not be taken back by GIMBER, the Customer may not refuse to pay the invoice for the Products, and no penalty or sum of any kind whatsoever may be applied, deducted, offset or invoiced to GIMBER for lack of conformity of the Products delivered with the order accepted by GIMBER.
4.4 - Audit - GIMBER reserves the right, after having informed the Customer in advance, to audit the conditions of acceptance of the Products if the Customer should notice missing or damaged Products affecting more than 10% (ten percent) of the deliveries during the same quarter.
5. RETURN OF PRODUCTS
No Products that conform to the accepted order shall be returned for any reason whatsoever.
Products delivered which are in conformity with the accepted order could be taken back only if the following conditions are met: (i) they do not correspond to the Products ordered or are damaged or have a defect; (ii) these cases of nonconformity must correspond to the reservations expressed by the Customer in accordance with the provisions of Article 4.3; (iii) GIMBER is able to verify the merits of the Customer’s request; (iv) the Products have not been altered or deteriorated after they were delivered to the Customer.
Any return handled by the carrier on the day of delivery shall be made under all reservations and without prejudice to GIMBER’s final decision to take back the Products.
6. INVOICING AND PAYMENT
6.1 – Issue and payment of invoices - An invoice shall be issued for each order when the Products are shipped. Unless an agreement has been reached concerning the implementation of EDI, invoices shall be sent to the Customer by e-mail.
Invoices issued by GIMBER shall be payable by bank transfer within 30 (thirty) days net as of their issue. Any postpone- ment of the payment period shall require the prior written consent of GIMBER. For the purposes of verification of the payment term, the Customer shall be deemed to have paid as soon as the invoice amount is irrevocably credited to GIMBER’s account. No discount shall be due for early payment.
6.2. - Late payment - Any late payment by the Customer shall accrue interest for late payment by operation of law, without prior notice, at the legal rate in force at the time, from the due date of the invoice until the day of full payment of the price, as well as a flat-rate collection indemnity of 15% of the invoice amount, with a minimum of €200. In addition, in the event of late payment by the Customer, GIMBER reserves the right to demand immediate payment of any invoice not yet due, to suspend or cancel current orders and deliveries, and/or to refuse or require prior payment of any new order, until full payment of the sums due, without prejudice to any other legal remedy.
6.3 - Substantial change - In the event of a substantial change in the Customer’s situation that could affect its solvency, GIMBER reserves the right to suspend the shipment of any order and to require cash payment by transfer before shipment. In such a case, GIMBER shall inform the Customer of the suspension of the shipment of its current orders by e-mail.
6.4 - Offset - Any payment due by the Customer may under no circumstances be suspended or be subject to reduction or offset without the prior written consent of GIMBER. Payment in whole or in part of an invoice by way of offset which has not been expressly authorized by GIMBER shall be considered as a default in payment and shall be treated in accordance with Article 6.3.
6.5. - Complaint - Any complaint by the Customer relating to the amount of an invoice must be sent by e-mail to email@example.com, within 30 (thirty) days as of the date of issue of the invoice, so that GIMBER may verify whether the error or complaint is proven and, if so, rectify the invoice before the due date for payment. Such a claim shall indicate the error or the reason therefor, the invoice reference and the Product(s) concerned. Failure to comply with the procedure and time limits described above shall result in the Customer’s claim not being processed by GIMBER. In the event of a complaint, payments may not be suspended or subjected to offset or deduction by the Customer and must be made within the period mentioned in Article 6.2. Any such suspension, deduction or offset shall be deemed as a default of payment.
7. RESERVATION OF OWNERSHIP
The Products shall remain the property of GIMBER until full payment of their price by the Customer, in principal and ancillary charges.
The Customer shall be responsible for the storage, handling and conservation of the Products after delivery. It shall ensure, at its own expense, the safekeeping, the risks of loss or deterioration of the Products subject to the reservation of ownership, as soon as the Products are delivered. It shall undertake to maintain the Products constantly identifiable as the property of GIMBER and to take out an insurance policy from a company known to be solvent to cover the risks on the Products until payment of the price in full.
The foregoing notwithstanding, the Customer shall be authorized to resell the delivered Products in the course of its Business. GIMBER nonetheless reserves the right to terminate this resale authorization if one of the invoices is not paid in full by the due date.
GIMBER may claim the unpaid Products (i) if the Customer fails to pay the price of the Products in full by the due date, or (ii) in the event that insolvency proceedings are instituted against the Customer. If the unpaid Products have already been sold by the Customer, the right to claim shall be exercised on the resale price. The Products still in the Customer’s possession and whose use by date is the most remote, shall be presumed to correspond to the unpaid Products in priority.
8. INTELLECTUAL PROPERTY
8.1 - Packaging of the Products - The Customer undertakes to present and sell the Products and their accessories exclusively under the GIMBER brand name and in the original packaging in which it acquired them from GIMBER. The Customer shall refrain from removing the trademark from the Products, or altering or making changes to the Products, their labelling or packaging.
8.2 - Use of the Distinctive Signs – For the resale and promotion of the Products, the Customer shall use the names, trademarks, logos, visuals or distinctive signs (hereinafter referred jointly to as the “Distinctive Signs”) belonging to GIMBER, which it has previously communicated to the Customer or whose use has been subject to the prior written consent of GIMBER.
The Customer accordingly undertakes to use the Distinctive Signs exclusively for the resale and promotion of the Products and to respect the image and reputation of GIMBER and the Products as well as any specific instructions or documents that GIMBER will communicate to that end.
Such use of GIMBER’s Distinctive Signs shall in no way constitute a license for the Customer. In the event of damage to the image or reputation of GIMBER or the Products, GIMBER reserves the right to suspend deliveries, without prejudice to the right to claim damages for the loss suffered.
No intellectual property rights shall be conferred to the Customer on these Distinctive Signs, which shall remain the full and exclusive property of GIMBER or its Affiliated Companies. The Customer undertakes not to acquire or attempt to acquire these intellectual property rights and not to use them outside the resale and promotion of the Products as defined in the Agreement.
8.3 - Assistance in the event of infringement - The Customer undertakes to inform GIMBER immediately upon be- coming aware of any act of unfair competition and/or infringement of the intellectual property rights concerning the Products, and to provide any assistance required by GIMBER to put an end to such infringement. The foregoing notwithstanding, GIMBER shall alone determine the measures to protect its rights in each case.
9. WARRANTIES AND LIABILITY
9.1 - Guarantee of Conformity - GIMBER shall guarantee the Customer that the Products are in every respect in conformity with the use for which they are intended, with the regulations applicable in the European Union and with the information appearing on their packaging.
If the Products are intended for sale outside the territory of the European Union, it shall be up to the Customer to communicate to GIMBER, prior to the first order, any regulatory requirements specific to the territory in which the Products are sold, in particular with regard to composition or labelling. GIMBER reserves the right to refuse orders if these requirements cannot be met within the delivery period. In the absence of sufficient communication by the Customer, GIMBER shall decline all liability concerning the non-conformity of the Products in the territory of sale.
Subject to the reservation expressed in the preceding paragraph, GIMBER shall provide the Customer with a guarantee against any latent defect resulting from a manufacturing defect of the Products delivered that renders them unfit for consumption. On pain of forfeiture, the Customer shall inform GIMBER of the existence of latent defects in writing, shall provide proof thereof within a maximum period of 8 (eight) days from discovery thereof, and shall facilitate GIMBER’s efforts to proceed with the ascertainment of such defects. GIMBER’s guarantee shall however be limited to normal use of the Products under conditions corresponding to their technical characteristics and to the recommendations for use.
9.2 - Consumer Complaints - The Customer undertakes to report to GIMBER, as soon as possible, any complaint by a consumer against a Product. It is understood that, in the event that the Customer responds to such a complaint without the prior written consent of GIMBER, both as to the principle and the content of the response, such response shall not be binding for GIMBER. Any decision by the Customer to organize a Product recall for any reason whatsoever without the prior written consent of GIMBER on this point or which has not been imposed by a competent authority, shall not be binding for GIMBER. The Customer shall remain solely liable for any fees or costs it incurs as a result of this Product recall.
9.3 - Limitation of Liability - The Customer shall be responsible for the storage, handling and conservation of the Products after delivery. Any guarantee shall be excluded in the event of failure to respect the integrity of the packaging, storage conditions (in a cool, clean, dry place, protected from frost, water and weather damage), improper handling, or any other negligence on the part of the Customer.
The Customer shall also be solely responsible for the conditions of resale of the Products. GIMBER may not be held liable in the event that the Customer resells the Products outside the country where delivery was made, in a territory where the Products do not comply with local regulations, in particular with regard to composition or labelling.
GIMBER’s liability shall be limited to the obligation to replace or reimburse the goods whose non-conformity has been ascertained by GIMBER, without the Customer being entitled to claim damages for any reason whatsoever in such a case. GIMBER shall not be liable for the sale of these Products by the Customer.
10. FORCE MAJEURE
GIMBER reserves the right to suspend, delay or modify the processing of orders in the event of force majeure as de- fined by law and case law, including, but not limited to, the following situations: strike, epidemic, machine breakdown, difficulty in the supply of raw materials, disruption or stoppage of transport, explosion, fire, bad weather (hereinafter referred to as “Force Majeure”).
GIMBER shall inform the Customer promptly of the occurrence of an event Force Majeure in writing and shall provide documented evidence. Insofar as an event of Force Majeure is duly established, the parties shall consult each other immediately in order to find a fair solution and shall make every reasonable effort to minimize the consequences of the event. In the absence of a specific agreement by and between the parties, the performance of the parties’ obligations under the Agreement shall be suspended for the duration of the delay caused by the event of Force Majeure and the performance period shall be automatically extended by an equal duration.
In the event of Force Majeure, GIMBER shall not be liable and no penalty shall be applied.
The Customer shall be solely responsible for - and entitled to set - the resale prices of the Products. Any price recommendation communicated by GIMBER shall in no way affect the Customer’s freedom to determine its resale prices.
The Customer shall also be solely responsible for any advertising or promotional offers made to the consumer concerning the Products.
12. PERSONAL DATA
GIMBER undertakes to comply with the provisions of the European Data Protection Regulation (GDPR) of 26 April 2016. The data collected by GIMBER in connection with the sale of the Products shall be processed only where necessary to ensure the proper performance of the contractual relationship. As such, they may be transmitted to GIMBER’s affiliated companies and shall be kept only for such time as reasonably necessary to achieve the purposes for which they are processed.
Any person who has communicated his or her data in the context of this contractual relationship shall have the right to access, rectify, delete, oppose, and limit the processing and portability of his or her data. This right may be exercised at any time, whereby its exercise may affect the proper performance of the contractual relationship. Any person may exercise these rights by sending an e-mail to firstname.lastname@example.org, and shall moreover have the right to file a complaint with the competent data protection authority provided in the GDPR in case of non-compliance.
The term “Confidential Information” refers to all technical, commercial and financial information of GIMBER and its Affiliate Companies in the broadest term, whether written or unwritten, which may come to its knowledge as a Customer in the performance of the Agreement and the GTCS, or which may be disclosed to it by GIMBER or its Affiliated Companies, irrespective of the manner in which it is disclosed, including but not limited to the contents of these GTCS, of the Agreement and all exchanges occurring during the negotiation of any kind whatsoever, as well as any information on products and services, recipes and manufacturing methods, raw materials, packaging, drawings and models, samples, moulds, machines, commercial and logistic strategy, technical and commercial documents, including all certification documents relating to an organic farming label, prices and GIMBER’s commercial partners.
Unless otherwise agreed in writing by GIMBER or required by law, the Customer undertakes to keep any Confidential Information confidential, not to use it for any purpose other than the performance of the Agreement and not to disclose or reveal it to third parties other than those employed by or acting on behalf of the Customer who have a need to know the Confidential Information because they are directly involved in the performance of the Agreement and who agree in writing to be bound by confidentiality to the extent set forth in this article. These obligations shall apply for a period of 5 (five) years following the termination of the Agreement for any reason whatsoever.
Either party may terminate the business relationship with the other at any time by sending a registered letter with acknowledgement of receipt and serving notice consistent with the normal practice in the sector.
Either party may terminate the business relationship with the other immediately by sending a registered letter with acknowledgement of receipt in the event of (i) a serious breach by the latter of its obligations, which it has not remedied within one month from the service of a relevant formal notice (assuming that it can be remedied) or (ii) bankruptcy, liquidation or the opening of judicial reorganization proceedings by one of the parties.
Orders placed by the Customer and accepted by GIMBER on the date of termination shall remain due and payable, unless otherwise agreed by and between the parties.
The provisions of the GTCS shall insofar as possible be interpreted as valid and effective under the applicable law.
If one or more provisions of the GTCS are deemed to be null and void, illegal or unenforceable (in whole or in part), the remainder of the provision and the GTCS shall not be affected and shall continue to apply in full as if the null and void, illegal or unenforceable provision(s) had never existed. In such event, the Parties shall agree to negotiate in good faith to amend the null and void, illegal or unenforceable provision(s) or any part thereof, and/or shall agree to a new provision that embodies the intent of the null and void, illegal or unenforceable provision(s) as closely as possible.
16. APPLICABLE LAW – COMPETENT COURT
All problems, questions and disputes concerning the validity, interpretation, performance, enforcement and termination of the Agreement and the GTCS shall be governed by and interpreted in accordance with Belgian law.
If a dispute arises between the parties as a result of or in connection with the Agreement or the GTCS, GIMBER and the Customer shall endeavour in good faith to settle it amicably. If the matter is not resolved within 30 (thirty) days of receipt of a written invitation to negotiate, the parties shall attempt to resolve the dispute in good faith through mediation.
If the matter is not settled within 90 (ninety) days as of the start of the mediation procedure, all disputes shall be submitted to the exclusive jurisdiction of the Brussels Commercial Court, which shall have sole jurisdiction, even in the event of multiple defendants or an appeal in warranty. The foregoing shall not prevent the parties from initiating summary proceedings if the matter is urgent.
This version of the GTCS was published by GIMBER on 15 September 2021.