Article 1 : Definitions

In these GTCS the following is understood to be:

“Agreement”: the binding agreement formed between ESS and the Buyer. The Agreement contains these GTCS, together with an Offer, Invoices and Documentation.

“ESS”: European Spice Services NV, having its registered office at 9140 Temse (Belgium), Kleine Dweersstraat 75, Belgium registered in the Crossroads Bank for Enterprises under number 0466.685.905, e-mail: info@spiceservices.com, RPR Ghent, district Dendermonde.

“Buyer”: every undertaking, as defined in article I.1,1° of the Belgian Code of Economic Law, who purchases Products from ESS.

“Force Majeure”: any unforeseen circumstance not dependent on the will of ESS as a result of which the Buyer cannot reasonably expect fulfilment of the Agreement. In any case, the term ‘force majeure’ is understood to refer to (without limitation): fire; explosion; natural disasters such as lightning strike, epidemics and pandemics, earthquake, etc.; wars, terrorism, riots, strike or work interruption, lockouts; staff absence due to illness; transport difficulties; interrupted electricity and gas supply; disruption of the internet, hacking and cyber-attacks, service­providers, computer network or telecommunication facilities, insufficient supply of raw materials/products; government measures including import and export bans, quota restrictions and environmental regulations; non-fulfilment or late fulfilment by suppliers of ESS and other third parties involved in the Agreement between ESS and the Buyer as a result of which ESS is unable to fulfil its obligations.

“Offer”: any sales offer that has been made by ESS to the Buyer which contains specific conditions of the Products.

“Order”: the sales order or other written documentation which contains specific conditions of the purchase of Products of ESS as ordered by the Buyer.

“Parties”: the Buyer and ESS.

“Prices”: the prices payable for the Products, specified in an Offer or invoice.

“Products”: all products offered by ESS, to be further specified in an Offer.

“Product Specification”: the detailed description of a Product, providing a specific classification of the Product based on technical parameters such as allergens, product information, contaminants, process information, certification etc.

“Transfer Title”: the transport documentation which serves as a proof of shipment. It may include remarks regarding discrepancies, damages, or other irregularities identified in the transported Products.

The definitions written in plural include the singular and vice versa.

Article 2 : Applicability

2.1 These GTCS exclusively govern all Offers, Orders and/or agreements regarding the delivery of Products by ESS, as well as the negotiations in this regard. The Buyer declares to have taken cognisance of these GTCS prior to the conclusion of the Agreement in a language he can understand and accepts these GTCS, even when only provided in electronic form, and also for repeat and/or future Orders, (without limitation) by accepting an Offer, placing an Order, signing an agreement, using and/or storing the Products, accepting an invoice, making a payment or by the delivery of Products. The Buyer acknowledges that each of these GTCS is genuinely wanted and none of them, individually or jointly, creates a manifest imbalance in the Agreement between ESS and the Buyer. These GTCS were taken into account when setting prices.
The GTCS are attached to every Offer and invoice and are available on ESS’s website (www. spiceservices.com) and can be requested via info@spiceservices.com.

2.2 These GTCS prevail over any previous versions of the GTCS of ESS. ESS retains the right to suggest changes of these GTCS at any time. ESS will inform the Buyer of these suggested changes in writing. These suggested changes will form an integral part of the Agreement between the Parties, unless the Buyer objects to them within thirty (30) days after the notification of the change and that by written or electronic communication.

2.3 All circumstances that were not reasonably foreseeable by ESS at the time of closing of the Agreement and that are not attributable to ESS and that make the performance of the Agreement significantly more burdensome or distort the economic balance of the Agreement, give entitlement to renegotiate the Agreement in accordance with article 5.74 of the Belgian Civil Code. The Agreement shall remain in force until the Parties have reached a written agreement over the changes. If the Parties do not reach an agreement within forty five (45) days after the request of renegotiation, ESS shall have the right to terminate the agreement immediately and without charge by written or electronic communication, without judicial intervention.

Article 3 : Offer and Order

3.1 ESS shall provide the Buyer with its proposal of Products, including pricing, as specified in an Offer. Unless the Offer stipulates otherwise, the conditions in the Offer shall be valid for a period of three (3) days from the date of the Offer.

3.2 The Offer shall be without obligation to deliver by ESS. An Order shall only be placed and binding upon an express written confirmation by ESS of an order from the Buyer. In the unlikely event that there is no express written confirmation, an agreement shall be realized when ESS starts to execute an Order from the Buyer, unless this has occurred under reservation. In that case the scope and content of the Agreement will be determined by the corresponding invoice issued by ESS.

3.3 Orders taken by a representative of ESS are only binding for ESS after a written confirmation by a competent person, who is authorised to bind ESS.

3.4 Once an Order has been placed, it cannot be cancelled by the Buyer. Changes to an Order shall only apply if they have been accepted by ESS in writing. In such a case, a new Offer and/or Order can be sent.

3.5 If Offers are based on information provided by the Buyer, ESS may assume the accuracy and completeness of this information without further investigation. If this information turns out to be incomplete and/or incorrect after the conclusion of the Agreement, ESS is entitled to charge any costs or surcharges incurred and ESS will not be responsible for any resulting disadvantages and/or damages.

Article 4 : Quality Standards

4.1 All information and characteristics mentioned in the brochures, catalogue, website, etc. and by ESS’s representatives is purely informative and by no means binding for ESS, who is only bound by the information and characteristics, as mentioned on the latest provided and confirmed Product Specification. Unless explicitly confirmed in writing, the provision of samples does not constitute a guarantee for the Products.

4.2 ESS only guarantees the Products being suitable for the processing and/or use by the Buyer, as explicitly mentioned on the confirmed Orders, sale contracts or sale invoices.

4.3 Test reports and results from third party laboratories prevail over Buyer’s test results in case of a dispute.

4.4 In case of a dispute between the Parties, the quality evaluation of the delivered Products will be established by a third independent professional expert and analysed by an independent expert laboratory, who are jointly appointed by the Parties. In the absence of an agreement between Parties, the expert and the laboratory shall be appointed by the President of the Enterprise Court of Ghent, division Dendermonde, at the request of either Party.ESS. The samples shall only be taken from sealed packaging and the cost of the quality evaluation will be incurred by the Buyer. The quality evaluation is binding upon Parties and disputes between Parties concerning the technical assessment will be settled by the competent judge according to article 13.5 GTCS.

Article 5 : Price

5.1 The Prices provided by ESS are expressed in euro, based on standard packaging, delivery ex works, and excluding VAT, sales taxes, import duties, export duties, custom charges, and other taxes, unless otherwise stated.

5.2 The Prices shall be solely applicable to the scope and quantities as stipulated in ESS’s respective Offer and Order confirmations.

5.3 If discounts have been granted by ESS on the Prices, these apply exclusively to the Products referenced in the specific Offer or Order confirmation and for the period as mentioned therein. Under no circumstances do they entail, not even with repeated extension thereof, any right on the part of the Buyer to comparable discounts on future Offers or Orders.

5.4 If the price of one or more cost-components of the Products should demonstrably change – independently of the will of ESS – between the time when the Order is confirmed and the time when the Products are delivered, ESS is entitled to modify the Price to the same extent as the prices of these cost­components increased, in respect of the proportion which they represent in the agreed Price. The following shall (without limitation) be considered as such cost-components: (i) the price of the Products, (ii) price increases by the supplier (iii) transport and storage costs, packaging costs; (iv) wages and social security charges; (v) VAT/GST rates, taxes, duties, levies, import or export duties; (vi) currency fluctuations; (vii) insurance premiums, or (viii) any increases due to changes in laws and regulations. If the agreed Price is increased in the aforementioned way, ESS shall inform the Buyer thereof.

Article 6 : Payment

6.1 The invoices of ESS will only be delivered electronically using the billing and contact information provided by the Buyer.

6.2 Unless otherwise stipulated on the invoice, all ESS’s invoices are payable on the invoice date. ESS will be entitled to request upfront payment of all or part of the Products ordered by the Buyer. In such a case, the Order is only confirmed in accordance with article 3.2 and once such payment has been received.
Payment will only be completed once the Prices, in the agreed currency and free from all deductions or settlements, are deposited or transferred to a bank account designated by ESS.
Transfer costs and banking fees are at the expense of the Buyer. The Uniform Customs and Practice for Documentary Credits is applicable and this in the version as applicable at the date the contract was entered into by Parties.

6.3 In the event of non- or late payment by the Buyer, exceeding the term set forth in article 6.2, the unpaid invoice amount shall be increased automatically and without notice of default, with default interest at a rate in accordance with the Law of 2 August 2002 on combating late payment in commercial transactions, as well as a fixed compensation of 10% of the invoice amount, with a minimum of 125 EUR, in addition to possible judicial or legal costs. By accepting these GTCS, the Buyer acknowledges that the aforementioned fixed compensation is proportional to the inconvenience suffered by ESS due to the non­- or late payment. The foregoing is without prejudice to ESS’s right to claim higher compensation subject to proof of higher damages actually suffered.

6.4 In the event of non- or late payment, all invoices, also those not yet due, shall become due and payable and any future payment facilities or discounts shall lapse. Payments made by the Buyer shall always serve to settle interest and costs owed first and then the due and payable claims which have been outstanding the longest. The above shall not be prejudiced by notification by the Buyer that payment relates to later invoices or debts.

6.5 Any objections to invoices must be filed with ESS in writing, stating the reasoning, within seven (7) days after receipt of the invoice by registered mail at the risk of inadmissibility.

6.6 If, at the request of the Buyer, the invoice was issued to a third party, the Buyer shall remain jointly and severally liable with the third party vis-a-vis ESS for compliance with all obligations arising from these GTCS. It is also up to the Buyer and the designated third party to correctly process the payment of the invoices in their bookkeeping (e.g. via current account) on their responsibility. ESS takes no responsibility in this respect.

6.7 ESS is authorised at any time to transfer her claim towards the Buyer to a third party. Drawing or accepting letter of credits implies no novation.

Article 7 : Delivery

7.1 The Products are delivered EXW (ESS premises or any other place of dispatch designated by ESS) (lncoterms 2020) to the Buyer, unless explicitly agreed otherwise in writing.

7.2 The type of packaging, mode of transport and shipping etc. shall be determined by ESS, unless the Buyer has given ESS express written instructions and ESS has confirmed these in writing. Any specific instructions by the Buyer will only be accepted and carried out if the costs involved are paid by the Buyer. ESS shall not be obliged to take back packaging for transport and other packaging material.

7.3 All risk shall pass to the Buyer when the Products (or partial shipment of the Products) leave the factory or have been picked-up.

7.4 The Buyer shall be in default of acceptance if the Buyer refuses to take over the Products on the specified date or does not pick-up or commission a carrier to pick up the Products on the specified date upon having received notification from ESS that the Products are ready for dispatch. In this event, the risk shall pass to the Buyer as soon as ESS has given notice that the Products are ready to be dispatched and the warranty period for the Products to be delivered by ESS shall start as soon as the Buyer starts to be in default of acceptance. During such period of default of acceptance, the Products shall be stored at the cost of the Buyer whereby the Buyer is obliged to remove the Products as soon as possible, on payment of the storage costs.
soon as ESS has given notice that the Products are ready to be dispatched and the warranty period for the Products to be delivered by ESS shall start as soon as the Buyer starts to be in default of acceptance. During such period of default of acceptance, the Products shall be stored at the cost of the Buyer whereby the Buyer is obliged to remove the Products as soon as possible, on payment of the storage costs.

7.5 The provided delivery times are indicative and approximate and not binding unless explicitly otherwise agreed upon. Nevertheless, ESS shall make reasonable efforts to deliver on the specified date. Exceeding this indicative delivery term does not give the Buyer the right to cancel its purchase, or claim for damages, except when provided for by law and only if the delay in delivery was ESS’s responsibility.

7.6 Delivery dates are conditional upon the timely receipt of all necessary information and documentation to be provided by the Buyer, as well as fulfilment of the agreed terms of payment and other obligations of the Buyer. If these conditions are not fulfilled on time, or if the Buyer requests modifications after the delivery confirmation date, the time for delivery will be extended accordingly.

7.7 Partial delivery of Products shall be permissible to the extent commercially reasonable. ESS is entitled to invoice for those parts individually.

7.8 The contract expiry date refers to the latest possible due date for shipments under this contract. To ensure timely delivery, ESS reserves the right to refuse call-off orders placed less than 2 months before the expiry date of a contract. The Buyer has exclusive responsibility for complying with export regulations, in particular payment of custom duties, as well as with other applicable tariffs and taxes (as the case may be). Insofar as required, ESS shall use its best endeavors to cooperate with completing the formalities for any import or export documentation, with the understanding that it bears no responsibility or liability in that regard and that any costs in that respect will have to be paid by the Buyer, unless explicitly agreed otherwise in writing.

Article 8 : Retention of Title

8.1 The delivered Products remain the property of ESS until full payment of the main sum, the costs and interest have been received, even if Products have been incorporated or changed.

8.2 The Buyer is prohibited from selling on (unless agreed upon), pledging, or in any way encumbering the Products that fall under this retention of rights. If third parties levy an attachment to delivered Products falling under the retention of title, or want to establish or claim rights thereon, then the Buyer is obliged to inform ESS hereof immediately and no later than within forty-eight (48) hours. The Buyer hereby assigns all claims and related rights it may have, as accepted hereby by ESS. The Buyer will provide all required information in this respect to ESS.

8.3 For the duration of the retention of title, the Buyer is obliged to store and maintain the Products with due care and shall protect the delivered items against improper use by third parties.
For the Products falling under the retention of title, the Buyer commits to insure and to maintain insurance against fire, explosion, and water damage as well as against theft and at the first request to provide for inspection of the insurance policy or premises of the Buyer.

Article 9 : Netting

9.1 Parties agree in accordance with the provisions of the Belgian Law on Financial Collateral of 15 December 2004, that in their reciprocal relation, as from the Agreement, all currently existing as well as any future debts shall always be automatic and ipso jure be set off against each other and compensated, irrespective of their due date, their aim or the currency in which they have been expressed. In case of concurrent creditors, the claim of the other Party on the Party dealing with concurrent creditors shall always be limited to the remainder after the setoff of the chargeable amounts and the permanent setoff will in any case have legal effect against the curator and the remaining creditors, who can themselves therefore not object nor oppose any of the aforementioned compensations or debt comparison carried out by Parties. The same applies in case of transfer or assignment of claims or debts.

Article 10 : Inspection and Acceptance

10.1 The Buyer is obliged to immediately take into receipt the Products, and to check that the delivered amount and quality corresponds to that which has been contractually agreed.

10.2 Non-conformity of the delivered Products and visible defects must explicitly, and even when the Products are received by a carrier, be mentioned on the Order or the Transfer Title at the time of delivery, by lack of which the delivered Products are considered to be accepted by the Buyer. The visible defects and non-conformities in the delivery are covered by this acceptance.

10.3 Hidden defects can only give rise to remediation within the warranty period of the supplier of ESS or if the lack of conformity manifests itself within a period of one (1) month after delivery and, upon penalty of forfeiture, if they were identified with appropriate haste and submitted to ESS within two (2) business days after the identification thereof, and in any event within five (5) business days of when the hidden faults should have been discovered, sent by registered letter with written statement containing sufficient proof.
In the event of a late objection, the Buyer is considered to have approved and accepted the Products.

10.4 Any complaints must be submitted by the Buyer by registered letter. If the Buyer formulates a complaint and this complaint is deemed founded by ESS, ESS could request the Buyer to ship the defective Products, on the risk and at cost of the Buyer, to the agreed upon location. Acceptance of the returned Products or an investigation of the defect by ESS does not grant any right or claims to the Buyer.

10.5 In case of a founded complaint, after investigation, ESS shall to its discretion determine to either (i) supply an equivalent replacement product or an equivalent component at the location of the Product entitled to the Buyer or (ii) reimburse the current market value of the Product. These are the sole remedies, and the Buyer (or any other party) has no right to any other indemnities unless provided by imperative law.
The warranty shall never apply to damage or defects caused by faulty or careless use, acts of third parties, transport damage outside ESS’s responsibility, changes to the Products, incorrect use, modification/processing or other alteration to/of the Products, poor storage or failure to observe the instructions for use or storage.
When the warranty concerns a product provided by a third party, it is limited to the warranty provided to ESS by its suppliers in respect of the product concerned. The warranty terms of this third party shall be provided free of charge at the Buyer’s request.

Article 11 : Suspension, Cancellation and Termination

11.1 In case of non-payment on the due date, or any default for any reason or failure to meet the obligations by the Buyer, ESS retains, without prejudice to what is set out in articles 6.3 and 6.4, the right to (i) unilaterally suspend the execution of all current Orders or any agreement with the Buyer; (ii) to unilaterally dissolve any agreement, without prior judicial authorisation; and/or (iii) request immediate return of the Products, and this if no or no useful effect has been given within seven (7) calendar days after the notice of default and without this being reason for the Buyer to claim damages.

11.2 ESS is entitled to terminate the Agreement with immediate effect and without prior judicial intervention at the expense of the Buyer if (i) there is a material breach of the Agreement and such breach is not remedied by the Buyer within seven (7) calendar days, (ii) the Buyer ceases or threatens to cease its business, is declared bankrupt, has filed for bankruptcy, requested legal reorganization, has been declared insolvent, or has applied to be placed in liquidation, without this resulting in any right to damages on the part of the Buyer.

11.3 If the Buyer unilaterally terminates the Agreement, the Buyer shall, due to breach of contract, pay ESS fixed damages equal to 30% of the price of the cancelled Agreement, excluding VAT. By the conclusion of the Agreement the Buyer acknowledges that the aforementioned fixed compensation is proportional to the loss suffered by ESS in the event of termination of the Agreement.

11.4 Suspension or termination by ESS pursuant to this article shall be without prejudice to its right to claim full compensation for damages.

11.5 In the case of the circumstances referred to in this article, the Buyer shall be deemed to be in default by operation of law and all the claims of ESS against the Buyer shall become immediately due and payable.

Article 12 : Liability

12.1 ESS is liable for non-compliance with its contractual obligations only if and to the extent (i) such non-compliance relates to one of the essential obligations under the Agreement, or (ii) damage was caused by ESS, its employees or authorised agents in cases of willful misconduct or gross negligence (iii) constitutes a serious violation of an individual’s physical integrity or life.

12.2 ESS can under no circumstances be held liable (i) for any damages, losses, or claims arising out of non-contractual obligations, unless falling under the exceptions mentioned in art. 12.1; (ii) for problems and/or damage that arise(s) as a result of improper or incorrect use of the Products; (iii) for problems as a result of Force Majeure (iv) for minor faults, i.e. faults that do not breach a material obligation under the Agreement or (v) if the Products provided to the Buyer have been changed or supplemented in any way.

12.3 To the extent permitted by applicable law, ESS can only be held liable for direct damage and never for indirect damage (e.g. loss of profit, business interruption, productions stoppages or other consequential damage in respect of the Buyer). In the event that ESS is found liable, article 10.5 is applicable.

12.4 This limitation of liability set forth in this clause applies also in cases of breach of duty by or to the benefit of ESS’s agents, legal representatives, employees and other entities for whose fault ESS is responsible by reason of applicable law. In case of breach of duty by ESS’s agents/subcontractors, the Buyer commits to primarily seek recourse with those agents directly for the damage that was caused and as far as permitted by law.

12.5 If the limitation of liability included in this title would in any way exceed the permitted legal limitation, the Buyer refrains from claiming its nullity. In such case, the limitations mentioned in this article shall be reduced/moderated to the maximum allowed within the applicable legal limit.

Article 13 : Varia

13.1 In case of Force Majeure, delivery and other obligations of ESS affected by the Force Majeure shall be suspended until the situation of Force Majeure is over. In the event of a Force Majeure, the affected Party is obligated to promptly notify the other Party in writing of the occurrence of such event, but not later than ten (10) business days from the time such event was or should reasonable have been discovered. The notification shall mention its expected duration and its impact on the affected Party’s ability to perform its obligations under this Agreement, as well as the reasonable efforts to mitigate the effects. During the aforementioned period of suspension the Parties will take all reasonable measures to mitigate the consequences of the Force Majeure and will in good faith negotiate the fulfilment of their respective obligations under the Agreement. If the situation of Force Majeure continues for more than forty-five (45) calendar days, both Parties can terminate the Agreement by registered mail, without prior judicial intervention. When Force Majeure occurs and ESS has already fulfilled part of its obligations or if it can only fulfil part of its obligations, it shall be entitled to invoice for the part already delivered or the deliverable part separately and the Buyer shall be obliged to pay this invoice as if it related to a separate agreement.

13.2 In the event that any provision of these GTCS or the Agreement is found to be unenforceable this does not affect the applicability of other provisions of the GTCS or the Agreement as a whole. The Parties shall undertake to replace the invalid provision by a new one which as far as possible shall meet the economic purpose intended by the invalid provision save where adherence to the contract would mean an undue hardship on one of the Parties.

13.3 The failure of, or any delay in, exercising any right or remedy on the part of ESS shall not operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy preclude any other or future exercise thereof or the exercise of any other remedy granted hereby or by any related document or by law.

13.4 The Buyer shall not be entitled to transfer or assign any rights, claims or entitlements contained in the Agreement and these GTCS to any third party whatsoever without the prior written consent of ESS.

13.5 These GTCS and any agreements, offers, orders disputes or claims arising out of or in connection therewith shall be solely governed by and construed in accordance with the laws of Belgium, except for its rules regarding the conflict of laws and the United Nations Convention on Contracts for the International Sale of Goods (CISG), both of which are hereby excluded. All disputes arising out of or in connection with these GTCS shall be exclusively settled by the competent court of the jurisdiction of Ghent, section Ghent, without prejudice to imperative law with regard to jurisdiction.

13.6 Parties acknowledge and agree that each clause of these GTCS is actually intended by them and does not create any (manifest) imbalance between the rights and obligations of the Parties.