General Terms and Conditions of Innovative Fresh

1 Definitions

In these General Terms and Conditions the following terms are defined as detailed below and used in both singular and plural:
-Client: every party who enters into an Agreement with Innovative Fresh or requests an offer from Innovative Fresh;
-Innovative Fresh: the private company with limited liability, Innovative Fresh B.V. (with its registered office in (1967 DB) Heemskerk (The Netherlands), at De Trompet 1660, registered in the Commercial Register of the Chamber of Commerce under file reference number 34309331)
-Parties: Innovative Fresh and the Client
-Agreement: Every agreement regarding the supply of Products and/or Services between Innovative Fresh and the Client, including any amendments and additions thereto. The Agreement does in any case include these General Terms and Conditions;
-Services: all services offered by Innovative Fresh that are the subject of a tender, offer, Agreement or other legal act between Innovative Fresh and the Client, including - but not limited to – advise, training, and monitoring programs
-Products: all items offered by Innovative Fresh that are the subject of a tender, offer, Agreement or other legal act between Innovative Fresh and the Client, including - but not limited to – reports, presentations and physical media or data carriers;
-Content: all works, texts, data, information or other materials published, announced or made available by Innovative Fresh

2 General

2.1 These General Terms and Conditions are applicable to and form an integral part of all Agreements and all offers or tenders issued by Innovative Fresh and exclude any (general) purchase or other conditions of the Client. These General Terms and Conditions at all times prevail should, in spite of the above, any (general) purchase or other conditions of the Client apply.
2.2 Once these General Terms and Conditions have been applicable to a legal relationship between Innovative Fresh and the Client, the Client is deemed to have consented in advance to the applicability of these General Terms and Conditions to Agreements entered into and to be entered into thereafter.
2.3 Innovative Fresh is entitled to change these General Terms and Conditions. Changed terms and conditions are deemed to have been accepted if the client has not objected to change in terms and conditions within 14 days of these changed terms and conditions having been sent to the client or having become known to the client.

3 Agreement

3.1 An Agreement can only be formed by (i) acceptance in writing by Innovative Fresh of an order, registration or instruction by the Client, (ii) by both Parties signing an Agreement or, (iii) by means of an order of the Client via e-mail and confirmation of the order by Innovative Fresh per e-mail to the Client.
3.2 An Agreement will be for undetermined period, unless both parties have agreed otherwise.
3.3 Offers and tenders of Innovative Fresh are revocable, subject to the Agreement and valid for the term indicated therein. If no term has been given, the offer or tender is valid for up to three (3) months after the date on which the offer or tender was issued. If an offer or tender of Innovative Fresh is accepted by the Client, Innovative Fresh has the right to revoke the offer or tender within two (2) working days of having received the acceptance notification.
3.4 Notwithstanding the provision of article 2.3, supplements and changes to the Agreement can only be agreed on between Innovative Fresh and the Client in writing. Where applicable, Innovative Fresh is at all times entitled to change, reduce and/or remove the volume, contents and functionalities of the Content, Services and/or Products. If, in the opinion of Innovative Fresh, there is a substantial change, Innovative Fresh will notify the Client of that change in advance. If, in the opinion of Innovative Fresh, the change gives rise thereto, Innovative Fresh will enter into consultation with the Client about a possible reduction in the price agreed for the Content, Services and/or Products.

4 Cooperation by the Client

4.1 The Client undertakes to provide Innovative Fresh with all information and documents which the latter believes to be required for the timely and proper execution of the Agreement, and to do so on time and in the desired form and manner.
4.2 The Client undertakes to inform Innovative Fresh without delay of any facts and circumstances that might be relevant to the proper execution of the Agreement.
4.3 Unless the nature of the Agreement dictates otherwise, the Client is responsible for the accuracy, completeness and reliability of the information and documentation provided to Innovative Fresh, even if they originate with or are acquired from third parties.

5 Execution of the Agreement

5.1 Innovative Fresh performs all Services on the basis of a best efforts obligation.
5.2 In the event of changes or additions causing the scope or volume of the agreed Services to change, for example as a result of contract extras, the charges payable for the additional work arising from it shall be determined in accordance with the rates of Innovative Fresh applicable the moment this additional work is performed.
5.3 Innovative Fresh determines the manner in which the Agreement will be executed and by whom, with due observance of the wishes expressed by the Client where possible. If the name or names of a staff member or staff members are explicitly mentioned in the Agreement Letter, Innovative Fresh will make an effort to ensure that the staff member or staff members in question is/are available for carrying out the work for the duration of the Agreement. Despite this fact, Innovative Fresh has the right to replace this staff member or these staff members in consultation with the Client.
5.4 Innovative Fresh keeps working documents in relation to the Agreement. This file, which contains copies of relevant documents, is the property of Innovative Fresh.
5.5 None of the (delivery) periods stated or agreed by Innovative Fresh are final deadlines. Innovative Fresh will make a proper effort to honour the (delivery) periods as much as possible.
5.6 Innovative Fresh is entitled to suspend fulfilling its obligations under an Agreement in the event that the Client fails to fully meet his (payment) obligations and/or fails to do so in time. Any adverse effects due to the suspension will be for the expense of the Client.
5.7 As the duration of the Agreement is subject to many factors, such as the quality of the information provided by the Client and the cooperation extended, the due dates for
completion of the work should be regarded as deadlines only where this has been agreed in
5.8 Unless execution of the Agreement proves to be permanently impossible, the Client cannot
terminate the Agreement on account of overdue performance, unless Innovative Fresh does not perform the Agreement, either partially or in full, within a reasonable period of which it was notified in writing after expiry of the agreed delivery period. 

6 Confidentiality

6.1 Every party to the Agreement must keep strictly confidential all information in relation to the business operations of the other party that could reasonably be deemed private and confidential, as well as the contents of the Agreement, and only use this information for the execution of the Agreement and limit access to that information to persons who need it for the aforesaid purpose. The Parties guarantee that these persons are obliged to keep confidential the private and confidential information under an employment contract and/or non- disclosure agreement.
6.2 Private and confidential information does not include information that was already in the public domain the moment it became known to the receiving party, or information that became public subsequently, or which the receiving party obtained from a third party without itself being subject to a duty of confidentiality and without the third party being subject to such a duty.

7 Payment Terms

7.1 Payment of an invoice must be effected within twenty one (21) days of the invoice date, unless otherwise agreed in writing. Innovative Fresh is entitled to demand payment in advance, cash payment and/or security for payment from the Client.
7.2 The payment terms are final deadlines. In the event of late payment, the Client, without a demand or notice of default being required, will automatically be in default of payment and obliged to pay interest of 1% per month or part thereof on the outstanding amount.
7.3 The Client is not permitted to suspend or set off payments on account of (alleged) shortcomings on the part of Innovative Fresh.
7.4 Innovative Fresh is entitled to change the prices for Services and/or Products. Price changes are effective immediately, unless otherwise agreed.
7.5 In January of each year, Innovative Fresh is entitled to adjust prices for Services and Products for the next succeeding year. This price adjustment is based on the Consumer Price Index as reported by Statistics Netherlands (CBS)

8 Intellectual Property Rights

8.1 All IP rights vested in the Services and/or Products provided within the framework of the Agreement and in the Content are held only by Innovative Fresh and/or its licensors, unless explicitly agreed otherwise in writing. The provision in this article is a reservation within the meaning of Section 15 , Subsection 1, of the Dutch Copyright Act.
8.2 Intellectual Property explicitly includes the ‘Innovative Fresh Operations Manual’. The Innovative Fresh Operations Manual is a copyrighted manual of detailed measuring and monitoring procedures, files with measurement and reporting formats, business information, other confidential and proprietary information, and trade secrets pertaining to Innovative Fresh.
8.3 No part of these General Terms and Conditions implies a transfer of IP rights.
8.4 The Client is not permitted to remove or change any notices regarding IP rights vested in the Products and/or the (results of the) Services.
8.5 Innovative Fresh explicitly does not waive the personality rights referred to in Section 25 of the Dutch Copyright Act.
8.6 If the IP rights to (a part of) the Services, Products and/or Content are vested in the licensors of Innovative Fresh, the Client may have to accept the licence provisions and conditions of these third parties in order to use (all functions of) the Services and/or Products. If the Client does not want this, the Client will forfeit any relevant claim it may have against Innovative Fresh.
8.7 In the event that it has been irrevocably established in court that the Services, Products and/or Content provided by Innovative Fresh infringe any IP right of a third party, or in the event that, in the opinion of Innovative Fresh, there is fair chance of such infringement occurring, Innovative Fresh, if possible, will ensure that the Client can continue to use the Service and/or Product (or anything that is functionally equivalent), without interruptions. Any other or further liability or obligation to indemnify on the part of Innovative Fresh on account of infringement of IP rights of a third party is entirely excluded.

9 Warranty and Indemnification

9.1 In no event shall Innovative Fresh be liable to the Client for any loss or damage whatsoever with respect to any conclusions or recommendations made by Innovative Fresh in relation to the Services. Every use of the Services and/or Products is at the risk and responsibility of the Client.
9.2 The Client guarantees that he will refrain from using the Services and/or Products (1) in a way that infringes the rights of Innovative Fresh or of third parties or in another unlawful manner, including the IP rights and privacy protection rights; (2) contrary to applicable laws or regulations; and/or (3) contrary to a provision of the Agreement.
9.3 The Client acknowledges that it shall be solely responsible for the consequences of any action taken by it based on the Data and Reports or pursuant to its interpretation of the Data and Reports.
9.4 The Client indemnifies Innovative Fresh against all third-party claims, damage and costs arising from and/or in connection with and/or which are the result of a breach of the aforesaid guarantee by the Client.

10 Term

10.1 The Agreement shall take effect as from the date when the Client agrees to the Proposal and shall remain in effect throughout the term of the obligations specified in the Agreement.
10.2 The Agreement may include an end date of the agreement and/or a notice period.
10.3 If there is no specific end date or notice period in the Agreement, the notice period for ending the Agreement is 2 months.
10.4 Innovative Fresh may automatically terminate the Agreement at any time, with no legal formalities and with immediate effect, if it observes a serious breach or repeated breaches of their contractual obligations by the Client, and if the breach cannot be remedied, regardless of its nature, or no corrective measure has been taken within a period of five (5) business days following receipt by the Client of a letter of notice specifying the nature of the breach and requesting that it be remedied, notwithstanding any damages and interest that may be demanded from the Client.
10.5 Articles that, with a view to their nature, are intended to continue to apply after the end of the Agreement remain in full force upon termination of the Agreement.

11 Staff Transfers

11.1 Neither party will, during the execution of the Agreement and within one year of termination of the Agreement, employ persons who are or were involved in the execution of the Agreement on behalf of the opposite party or conduct negotiations with these persons about employment, other than in consultation with the opposite party.
11.2 The party that employs one or more persons who were involved in the execution of the Agreement on behalf of the opposite party despite the restriction referred to above, undertakes to pay to the opposite party at least the recruitment costs incurred by that party for the purposes of recruiting one or more replacements.

12 Miscellaneous

12.1 The General Terms and Conditions, the Agreement and every use of Products and/or Services are governed by Dutch law. The applicability of the Vienna Sales Convention (CISG) is explicitly excluded.
12.2 Disputes between Innovative Fresh and the Client will exclusively be submitted to the court that has jurisdiction within the district of Amsterdam (The Netherlands).
12.3 In the event that any provisions in these General Terms and Conditions are void or voided, the remaining provisions will remain unimpaired. In that case, Innovative Fresh will decide on a new provision to replace the void/voided provision, the purport and meaning of this replacement provision will be as close to the original provision as possible.
12.4 Innovative Fresh will be entitled to engage third parties for the execution of the Agreement. Innovative Fresh can (sub)license or transfer the rights and obligations under the Agreement to a third party, without the approval of the Client.
12.5 Innovative Fresh at any one time failing to invoke a right or power it is entitled to under the Agreement or by virtue of the law does not mean that Innovative Fresh waives this right or power.