terms-of-service
GENERAL TERMS AND CONDITIONS
Silk Road Ice cream B.V. / The Ice Cream Faktory
1. Company details and brands
1.1. These general terms and conditions are used by Silk Road Ice cream B.V., trading under the brands “Silk Road Ice Cream” and “The Ice Cream Faktory”.
1.2. Silk Road Ice Cream is the main company brand for the sale, distribution and supply of ice cream, frozen desserts and related products.
1.3. The Ice Cream Faktory is a brand of Silk Road Ice cream B.V. specialising in co-packing, private label production, white label production, product development, sampling, pilot production and related production services.
1.4. Unless expressly agreed otherwise in writing, the contracting party is Silk Road Ice cream B.V.
2. Definitions
2.1. Company: Silk Road Ice cream B.V., trading under the brands Silk Road Ice Cream and The Ice Cream Faktory.
2.2. Customer: any business customer, reseller, distributor, wholesaler, retailer, foodservice customer, brand owner, private label customer, white label customer, co-packing customer or other party that submits a request to, receives a quotation from, places an order with or enters into an agreement with the Company.
2.3. Business Customer: a customer acting in the course of a trade, business, profession or commercial activity.
2.4. Consumer: a natural person acting outside a trade, business or profession. These general terms and conditions are intended primarily for Business Customers and co-packing customers. If the Company enters into a transaction with a Consumer, mandatory consumer protection law remains fully unaffected. If the Company offers products directly to Consumers online, separate consumer terms may apply.
2.5. Agreement: any agreement between the Company and the Customer that has been expressly accepted by the Company in writing or electronically.
2.6. Order: a specific order accepted by the Company in writing or electronically, including the agreed product, quantity, price, delivery moment, delivery location, service scope and other confirmed conditions.
2.7. Order Request: any purchase order, repeat order, production request, new batch request, new flavour request, sample request, delivery request, quotation request, forecast, planning request, private label request, white label request, co-packing request, product development request or other request submitted by the Customer before written or electronic acceptance by the Company.
2.8. Products: all ice cream, frozen desserts, food products, samples, prototypes, ingredients, packaging, semi-finished products and related goods supplied or produced by or on behalf of the Company.
2.9. Services: all services supplied by or on behalf of the Company, including product development, recipe development, co-packing, private label production, white label production, testing, sampling, production support, advice, sourcing, packaging support, labelling support, storage, freezing, logistics support and related activities.
2.10. Co-packing Services: production, filling, freezing, packing, labelling or related services performed by the Company under the brand The Ice Cream Faktory for the Customer’s own brand, private label, white label or product concept.
2.11. Written or in writing: communication by signed document, letter, email, electronic message or other written/electronic communication that can be stored and reproduced.
3. Applicability
3.1. These general terms and conditions apply to all quotations, offers, price lists, samples, product information, activities, order requests, orders, agreements, services, product development, co-packing, private label production, white label production, deliveries and other acts by or on behalf of the Company.
3.2. These terms also apply to all future order requests, repeat orders, future deliveries, future services and future collaborations between the Company and the Customer, unless the Company expressly agrees otherwise in writing.
3.3. The Customer’s general purchase conditions, procurement conditions or other terms are expressly rejected and do not apply, unless the Company expressly accepts them in writing.
3.4. Deviations from these terms are valid only if expressly agreed in writing.
3.5. If a written agreement conflicts with these terms, the written agreement prevails only for the specific subject matter and order covered by that written agreement.
3.6. If any provision of these terms is invalid, void or unenforceable, the remaining provisions remain valid.
3.7. The Company will provide or make these general terms and conditions available to the Customer before or at the time the Agreement is concluded, including by sending them with a quotation, referring to them in an order confirmation, making them available on the Company’s website, or providing them by email or other durable electronic means.
3.8. By submitting an Order Request, accepting a quotation, placing an order, signing an agreement, approving a production run or accepting delivery, the Customer confirms that it has had the opportunity to read and store these general terms and conditions.
3.9. If these terms are made available electronically, the Customer may download, save and print them.
3.10. These terms are intended for B2B transactions, including wholesale, foodservice, retail supply, distribution, private label, white label and co-packing. They are not intended as a complete consumer webshop policy.
3.11. If several documents apply to an Agreement, the following order of priority applies unless expressly agreed otherwise in writing:
a. a signed written agreement;
b. an agreed product specification, quality agreement or technical specification;
c. the Company’s written order confirmation;
d. the Company’s quotation;
e. these general terms and conditions.
4. Order requests, acceptance and right to refuse orders
4.1. Every order request is only a request or offer by the Customer to enter into an agreement with the Company.
4.2. The Company is never obliged to accept any new order, repeat order, new batch, new flavour, production request, delivery request, sample request, capacity reservation, private label request, white label request, co-packing request or continuation of a collaboration, unless the Company expressly accepts that specific obligation in writing or electronically.
4.3. An agreement is concluded only when the Company expressly confirms in writing or electronically that the specific order or project has been accepted.
4.4. A receipt confirmation, automatic email, payment request, invoice, pro forma invoice, quotation request, discussion, negotiation, sample delivery, planning proposal, forecast, product development activity, delivery estimate, availability statement or other communication does not count as acceptance unless the Company expressly states that the specific order is accepted.
4.5. Previous quotations, accepted orders, deliveries, samples, product development, discussions, planning, forecasts, price lists, payment history, customer relationship, course of dealing or earlier acceptance of any order do not create any obligation for the Company to accept future orders or continue supplying the Customer.
4.6. Acceptance of one order applies only to that specific order, including the specific product, quantity, price, delivery moment, delivery location and service scope confirmed by the Company.
4.7. Each repeat order, new batch, new flavour, production run, delivery period, purchase order, forecast, planning request or collaboration request is treated as a separate and new request, unless the Company expressly agrees otherwise in a separate written agreement.
4.8. No framework agreement, continuing supply agreement, subscription, exclusivity arrangement, minimum supply obligation, capacity reservation, requirements contract, long-term collaboration or obligation to continue supplying exists unless expressly agreed in a separate written agreement signed by the Company and clearly identified as such.
4.9. The Company may refuse, limit, postpone or not accept any new or repeat order before acceptance, including for reasons relating to production capacity, stock, ingredients, packaging, minimum order quantities, technical feasibility, food safety, quality control, regulatory compliance, payment history, credit risk, incomplete information, delivery limitations, reputational risk, business priorities or any other legitimate business reason.
4.10. The Company is not required to give reasons for refusing an order, unless mandatory law requires otherwise. The Company will not refuse orders on unlawful discriminatory grounds.
4.11. Payment by the Customer before written or electronic acceptance does not by itself create an agreement. If the Company does not accept the order, the Company will refund the amount paid for the non-accepted order within a reasonable period.
4.12. Forecasts, expected volumes, launch plans, estimated order quantities and production estimates are non-binding unless the Company expressly confirms in writing that they are binding.
5. Offers and quotations
5.1. All offers, quotations, price lists, product information, samples, availability statements and delivery estimates are non-binding, unless the Company expressly states in writing that they are binding.
5.2. A quotation or offer is valid for a maximum of 1 month from its date, unless another validity period is stated.
5.3. If the Customer does not accept an offer or quotation within the validity period, the offer or quotation lapses automatically.
5.4. A quotation applies only to the specific order, quantity, product, service scope, delivery moment and Customer stated in the quotation.
5.5. Quotations, offers, price lists and product information do not apply to repeat orders, changed orders, future batches, future delivery periods, future collaborations or future production runs unless the Company expressly confirms this in writing.
5.6. The Company may withdraw or amend a non-binding offer or quotation at any time before acceptance.
5.7. Upon acceptance by the Customer of a non-binding offer or quotation, the Company reserves the right to withdraw or amend the offer or quotation within 3 days after receipt of the Customer’s acceptance, without being liable for damages.
5.8. Products, flavours, packaging, ingredients, prices, production slots and delivery dates are always subject to availability, production capacity, technical feasibility, food safety requirements and final written or electronic acceptance by the Company.
6. Prices
6.1. For Business Customers, all prices are in euros and exclusive of VAT, shipping costs, transport costs, administration costs, storage costs, packaging costs, import/export costs, customs duties, levies and other additional costs, unless expressly stated otherwise.
6.2. The Company may change prices for future order requests at any time.
6.3. Price changes do not apply to orders already accepted by the Company, unless the parties have agreed otherwise in writing or mandatory law allows this.
6.4. If the parties agree on a target price for a service, development project or production work, this is an estimate only, unless the parties have expressly agreed in writing on a fixed price.
6.5. The Company may exceed a target price by up to 10%.
6.6. If the target price will be exceeded by more than 10%, the Company will inform the Customer in due time why the higher price is justified.
6.7. If the target price is exceeded by more than 10%, the Customer may cancel only the part of the order or service that exceeds the target price by more than 10%, unless the parties have agreed otherwise in writing.
6.8. The Company may adjust prices annually and may also adjust prices for future orders due to changes in ingredient costs, packaging costs, labour costs, energy costs, transport costs, exchange rates, supplier prices, taxes, legal requirements or other cost factors.
7. Payment and payment term
7.1. The Company may require a down payment, advance payment, prepayment or security before accepting an order or starting delivery, production, product development, co-packing, sourcing, packaging procurement or other services.
7.2. Unless the parties agree otherwise in writing or the invoice states a different payment term, invoices must be paid within 14 days after the invoice date.
7.3. Payment must be made without deduction, set-off or suspension, unless mandatory law provides otherwise.
7.4. Payments must be made to the bank account stated on the invoice. Unless another bank account is stated on the invoice, the Company’s bank account is IBAN NL25 QNTO 1092 4905 51.
7.5. The Company may make acceptance, production, delivery or performance conditional upon immediate payment, advance payment or adequate security.
7.6. The Company may suspend production, delivery, development work, services and other obligations until all due amounts have been paid or adequate security has been provided.
7.7. If the Customer disputes an invoice, the Customer must notify the Company in writing within 7 days after the invoice date, stating the reasons for the dispute. Disputing part of an invoice does not suspend the payment obligation for the undisputed part.
7.8. Costs for customised ingredients, customised packaging, printed cups, printed lids, special labels, moulds, tools, external laboratory tests, transport bookings, production reservations and other customer-specific costs may be invoiced in advance and may be non-refundable once ordered, reserved, produced or incurred.
8. Consequences of late payment
8.1. If the Customer does not pay within the agreed payment term, the Customer is in default after the payment term has expired, unless mandatory law requires a prior reminder or notice.
8.2. In case of late payment by a Business Customer, the Company may charge statutory commercial interest and statutory or reasonable collection costs in accordance with applicable law.
8.3. If the Customer is in default, all reasonable judicial and extrajudicial collection costs are payable by the Customer, insofar as permitted by law.
8.4. If the Customer does not pay on time, the Company may suspend all obligations, including production, delivery, development work, acceptance of new orders and continuation of collaboration.
8.5. In case of liquidation, bankruptcy, suspension of payment, debt restructuring, attachment, insolvency or similar circumstances affecting the Customer, all claims of the Company against the Customer become immediately due and payable.
8.6. If the Customer refuses to cooperate with performance of an agreement, the Customer remains obliged to pay the agreed price and any additional costs incurred by the Company.
9. Retention of title, right of recovery and suspension
9.1. All products delivered by the Company remain the property of the Company until the Customer has fully paid all amounts due under any agreement, including invoices, interest, costs, damages and claims due to breach of contract.
9.2. Until ownership has transferred, the Customer may not pledge, sell, transfer, dispose of, process, mix, encumber or otherwise deal with the products in a way that affects the Company’s ownership, unless the Company has given prior written consent.
9.3. The Customer must store products delivered under retention of title carefully and separately and must identify them as property of the Company where reasonably possible.
9.4. If the Company invokes retention of title, the Customer must cooperate fully with the return or collection of the products.
9.5. As soon as the Customer is in default, the Company may invoke any statutory right of recovery with regard to unpaid products delivered to the Customer, insofar as permitted by law.
9.6. The Company may retain products, documents, materials, packaging, ingredients or other items of the Customer that the Company holds until the Customer has paid all outstanding amounts due.
9.7. The Customer may not suspend payment or performance because of a complaint, claim or alleged counterclaim, unless mandatory law provides otherwise.
10. Delivery
10.1. Delivery takes place only after the Company has accepted the order in writing or electronically.
10.2. Delivery takes place while stocks last and subject to availability of ingredients, packaging, production capacity, technical feasibility, food safety requirements and timely payment.
10.3. Delivery takes place at the Company’s location, unless the parties have agreed otherwise in writing.
10.4. If delivery to an address has been agreed, delivery takes place at the delivery address stated by the Customer and accepted by the Company.
10.5. The Customer is responsible for providing complete and correct delivery information.
10.6. The Company may deliver orders in parts, unless agreed otherwise in writing.
10.7. If the Company cannot deliver an accepted order due to unavailable stock, unavailable ingredients, unavailable packaging, production problems, quality concerns, food safety concerns, transport limitations, force majeure or another circumstance outside its reasonable control, the Company may offer an alternative delivery date, alternative product, partial delivery or refund for the undelivered part.
10.8. The Company is not liable for delay or non-delivery of an order that has not yet been accepted.
11. Delivery periods
11.1. Delivery periods stated by the Company are indicative only, unless the Company expressly confirms a fixed delivery date in writing.
11.2. A delivery period starts only after all of the following have occurred:
a. the Company has accepted the order in writing or electronically;
b. the Customer has provided all required information, specifications, artwork, approvals and materials;
c. the Customer has paid any required advance payment or provided any required security; and
d. all other conditions for production or delivery have been fulfilled.
11.3. Exceeding an indicative delivery period does not entitle the Customer to damages, cancellation or dissolution, unless mandatory law provides otherwise.
11.4. If a fixed delivery date has been expressly agreed in writing and the Company does not deliver on time, the Customer must first give the Company a reasonable written period to perform, unless mandatory law provides otherwise.
12. Actual delivery, cold chain and acceptance of products
12.1. The Customer must ensure that actual delivery or collection can take place on time.
12.2. The Customer must ensure that someone is present to receive the products at the agreed time and location.
12.3. If delivery cannot take place due to circumstances attributable to the Customer, including absence, incorrect address information, refusal to accept delivery, late collection or lack of suitable storage facilities, the resulting costs, delays and quality risks are for the Customer’s account and risk.
12.4. Products that require refrigeration or freezing must be received, stored and handled immediately and correctly by the Customer.
12.5. From the moment of delivery or collection, the Customer is responsible for correct storage, handling, temperature control, cold chain management and use of the products, unless mandatory law provides otherwise.
12.6. The Customer must comply with all storage instructions, temperature requirements, expiry dates, food safety rules and handling instructions provided by the Company or required by law.
13. Transport, export and Incoterms
13.1. Transport costs, shipping costs, packaging costs, import/export costs, customs duties and related costs are payable by the Customer, unless agreed otherwise in writing.
13.2. If Incoterms are agreed, the agreed Incoterm version and delivery condition will apply only to the relevant order.
13.3. The Customer is responsible for import permits, customs clearance, local product registration, local labelling rules, export documentation required from the Customer side and compliance with laws in the destination market, unless the Company expressly agrees otherwise in writing.
13.4. If the Customer arranges transport, the Customer is responsible for selecting a suitable carrier, maintaining the required temperature and inspecting the products before transport starts.
13.5. If the Customer or its carrier fails to maintain the required cold chain, any resulting quality loss, spoilage, rejection, complaint, recall or damage is for the Customer’s account and risk.
14. Packaging, visible damage and transport damage
14.1. If packaging is opened, damaged or visibly affected on delivery, the Customer must have a note drawn up by the carrier, forwarder or delivery person before accepting the products, or must otherwise record the damage immediately and clearly.
14.2. The Customer must report visible damage to the Company as soon as possible after delivery, with photos and a clear description.
14.3. If the Customer arranges transport itself, visible damage must be reported to the Company before transport starts. If the Customer fails to do so, the Company cannot be held liable for damage arising during or after transport arranged by the Customer.
15. Co-packing, private label and white label services
15.1. Co-packing Services are performed only within the scope expressly accepted by the Company in writing.
15.2. Any collaboration, product development, private label, white label, sampling, testing, production trial or supply relationship is limited to the specific work or order expressly accepted by the Company.
15.3. Unless expressly agreed otherwise in a separate written agreement, the Company is not obliged to continue a collaboration, reserve production capacity, accept future orders, develop new products, produce repeat batches, maintain exclusivity, maintain prices or continue supplying the Customer.
15.4. Samples, prototypes, test products and pilot batches are provided for evaluation only, unless the Company expressly agrees otherwise in writing.
15.5. A sample, prototype or test product does not guarantee that the Company can or will produce, accept, supply or continue to supply the product commercially.
15.6. Product specifications, recipes, ingredients, production methods, textures, colours, flavours, weights, volumes and packaging may vary within reasonable production margins, unless the Company expressly agrees fixed specifications in writing.
15.7. Forecasts, expected volumes, launch plans, sales expectations and production estimates are non-binding unless the Company expressly confirms in writing that they are binding.
15.8. The Company may stop discussions or decline further collaboration before a new order or project has been accepted. Any accepted and performed work remains payable by the Customer.
16. Production tolerances, minimum order quantities and yield
16.1. Minimum order quantities apply as stated in the quotation, order confirmation or written agreement.
16.2. Due to the nature of food production, freezing, filling, packaging, start-up loss, machine loss and batch variation, actual quantities, weights and volumes may deviate within reasonable margins.
16.3. Unless agreed otherwise in writing, the Company may deliver and invoice up to 10% more or 10% less than the agreed production quantity.
16.4. Start-up losses, pipe losses, testing losses, unavoidable production losses and losses caused by the Customer’s recipe, materials, packaging or instructions may be charged to the Customer, unless agreed otherwise in writing.
16.5. If the Customer provides ingredients, packaging or other materials in insufficient quantity or unsuitable quality, any resulting delay, production loss, additional cost or failed production is for the Customer’s account and risk.
17. Customer-supplied ingredients, packaging and materials
17.1. If the Customer supplies ingredients, packaging, labels, recipes, artwork, raw materials or other materials, the Customer guarantees that these are safe, legal, suitable, traceable, correctly labelled, complete, not expired and compliant with all applicable laws.
17.2. The Customer must provide all required specifications, certificates, allergen information, microbiological information, technical data sheets, safety data, halal/vegan/organic or other claim documentation and any other relevant documentation in time.
17.3. The Company may refuse, quarantine, test, reject or return Customer-supplied materials if the Company has doubts about safety, legality, quality, suitability, traceability, documentation or compatibility with production.
17.4. Customer-supplied materials remain at the Customer’s risk, unless damage is caused by intent or gross negligence of the Company.
17.5. The Company is not liable for defects, delays, contamination, failed production or quality issues caused by Customer-supplied ingredients, packaging, labels, recipes, artwork, raw materials or instructions.
17.6. Additional storage, handling, testing, inspection, disposal or return costs relating to Customer-supplied materials may be charged to the Customer.
18. Artwork, labels, claims and regulatory responsibility
18.1. For Products marketed under the Customer’s name, brand or private label, the Customer is responsible for the correctness, legality and completeness of all artwork, labels, packaging text, ingredient declarations, allergens, nutritional values, product claims, barcodes, product names, trademarks, origin claims, halal/vegan/organic claims, instructions, translations and market-specific legal requirements, unless the Company expressly accepts responsibility for a specific item in writing.
18.2. The Company will provide information reasonably available to it and relevant to the Products it manufactures or supplies, so that the Customer can meet its own legal and regulatory obligations. Any support provided by the Company with labelling, claims, specifications or regulatory matters is a best-efforts service only and does not transfer final legal responsibility to the Company unless expressly agreed otherwise in writing.
18.3. The Customer must approve all final artwork, packaging, labels, specifications and product information before production.
18.4. Approval by the Customer means that the Customer accepts responsibility for the approved materials and information.
18.5. Any costs resulting from errors, omissions or changes after approval, including reprinting, repacking, relabelling, destruction, recall, delay or loss of products, are for the Customer’s account, unless caused by intent or gross negligence of the Company.
18.6. Mandatory food information must be provided in the language required for the market where the Product is sold. The Customer is responsible for translations and market-specific requirements unless agreed otherwise in writing.
19. Food safety, quality and recalls
19.1. The Company performs accepted production work in accordance with applicable food safety requirements, internal quality procedures and the requirements of good workmanship.
19.2. The Customer must provide all information necessary for food safety, allergen control, traceability, legal compliance and correct production.
19.3. The Customer must immediately inform the Company of any complaint, suspected defect, food safety issue, temperature deviation, labelling issue, authority contact or possible recall relating to products produced, supplied or handled by the Company.
19.4. The parties will cooperate reasonably in the event of a complaint, investigation, withdrawal or recall.
19.5. If a recall, withdrawal, complaint, authority action or third-party claim is caused by the Customer’s recipe, design, label, claim, instruction, supplied material, storage, transport, resale, export or other act or omission, all related costs and damages are for the Customer’s account.
19.6. If a recall is caused solely by a proven manufacturing fault attributable to the Company, the Company’s liability is limited in accordance with these terms, unless mandatory law provides otherwise.
19.7. The Customer may not make public statements about a food safety issue, complaint, recall, withdrawal or alleged defect involving the Company without prior consultation with the Company, unless immediate disclosure is required by law, by a competent authority, or to prevent a risk to health or safety. Nothing in these terms prevents either party from informing, cooperating with or responding to competent authorities where required by law.
20. Storage
20.1. If the Customer collects, receives, stores or uses products later than the agreed delivery or collection date, the risk of quality loss, temperature deviation, spoilage, damage and additional costs is for the Customer.
20.2. Any additional costs caused by early, late or failed collection or delivery are for the Customer’s account.
20.3. If the Company stores products, ingredients, packaging or materials for the Customer, storage is subject to available capacity and may be charged separately.
20.4. The Company may require the Customer to collect products, ingredients, packaging or materials within a reasonable period.
20.5. If the Customer fails to collect items after written notice, the Company may charge storage costs and may, where legally permitted, dispose of, destroy, return or sell the items at the Customer’s cost and risk.
21. Guarantee and best-efforts obligations
21.1. Products must comply with the agreement and applicable mandatory legal requirements.
21.2. For Business Customers, any guarantee applies only if and insofar as the Company has expressly agreed this in writing.
21.3. For services, product development, recipe development, advice, production support, sourcing and similar activities, the Company has a best-efforts obligation only, unless the Company expressly accepts a result obligation in writing.
21.4. The Company does not guarantee commercial success, retailer acceptance, consumer acceptance, taste preference, shelf performance outside agreed storage conditions or suitability for a specific market unless expressly agreed in writing.
22. Customer’s duty to inform and cooperate
22.1. The Customer must provide all information, specifications, requirements and circumstances relevant for the quotation, order, production, delivery, use, resale, labelling, storage, transport, export or legal compliance of the products or services.
22.2. The Customer guarantees that all information provided to the Company is correct, complete and not misleading.
22.3. The Customer is responsible for checking whether the products are suitable for the Customer’s intended use, target market, storage conditions, transport conditions, resale method and legal obligations.
22.4. If the Customer resells, distributes, exports, relabels, repackages or processes products, the Customer is responsible for complying with all applicable laws and regulations, unless expressly agreed otherwise in writing.
22.5. If the Customer does not provide required information, approvals, materials, specifications, delivery details, artwork, packaging information, labels, legal information, payment or cooperation on time, any resulting delay, additional costs, extra hours, loss of quality or impossibility of performance are for the Customer’s account and risk.
23. Intellectual property
23.1. The Company retains all intellectual property rights, including copyrights, trademark rights, trade name rights, design rights, recipe rights, know-how, trade secrets, database rights and other rights relating to all designs, drawings, writings, recipes, production methods, data, images, sketches, models, samples, concepts, packaging, product ideas, documents, quotations, advice and other information created or provided by the Company, unless expressly agreed otherwise in writing.
23.2. The Customer may not copy, reproduce, disclose, show to third parties, use, modify, reverse engineer or otherwise exploit any intellectual property, confidential information, recipe, production method, sample, concept, design or other material of the Company without prior written permission.
23.3. The Customer may not use the name, trademarks, trade names, logos, product names, images or other branding of the Company, Silk Road Ice Cream or The Ice Cream Faktory without prior written permission.
23.4. If the Customer provides materials, designs, labels, packaging, brand names, recipes, instructions or other content to the Company, the Customer guarantees that their use does not infringe any rights of third parties and does not violate applicable law.
23.5. The Customer indemnifies the Company against all claims relating to materials, designs, labels, packaging, brand names, recipes, instructions or other content provided by or on behalf of the Customer.
23.6. Customer Materials remain the property of the Customer. Customer Materials include the Customer’s pre-existing trademarks, brand names, artwork, recipes, formulations, product concepts, labels, packaging designs and written specifications supplied by the Customer.
23.7. Company Materials remain the property of the Company. Company Materials include the Company’s pre-existing and independently developed recipes, formulations, production methods, technical know-how, process improvements, supplier knowledge, pricing structures, samples, prototypes, documentation and manufacturing knowledge.
23.8. Unless expressly agreed otherwise in writing, no intellectual property rights are transferred between the parties. The Customer receives only the limited rights necessary to use the Products supplied under the relevant Agreement.
23.9. Improvements, modifications or technical solutions developed by the Company in relation to production efficiency, texture, stability, shelf life, manufacturing method, freezing process or process optimisation remain the property of the Company, unless expressly agreed otherwise in writing.
24. Confidentiality
24.1. The Customer must keep confidential all information received from the Company in any form.
24.2. Confidential information includes all information concerning the Company that the Customer knows or can reasonably suspect is confidential, secret, commercially sensitive or harmful to the Company if disclosed.
24.3. Confidential information includes recipes, production methods, product development, samples, pricing, margins, supplier information, business plans, technical information, customer information, know-how, trade secrets, designs, packaging information and other non-public information.
24.4. The Customer must take all necessary measures to keep confidential information secret and to prevent unauthorised disclosure or use.
24.5. The confidentiality obligation does not apply to information:
a. that was already public before the Customer received it;
b. that later becomes public without breach of confidentiality by the Customer; or
c. that must be disclosed by law or by a competent authority, provided that the Customer informs the Company in advance where legally permitted.
24.6. The confidentiality obligation applies during the agreement and for 3 years after the agreement ends, unless the information qualifies as a trade secret or remains confidential by nature, in which case the confidentiality obligation continues as long as the information remains confidential.
25. Penalties for breach of confidentiality or intellectual property
25.1. If the Customer breaches the provisions concerning confidentiality or intellectual property, the Customer forfeits to the Company an immediately payable penalty of EUR 5,000 per breach if the Customer is a Business Customer.
25.2. In addition, the Customer forfeits a penalty of 5% of the applicable penalty amount for each day that the breach continues.
25.3. No actual damage, prior notice of default or legal proceedings are required for the forfeiture of a penalty.
25.4. The forfeiture of a penalty does not affect any other rights of the Company, including the right to claim performance, injunction, damages, compensation, costs and interest.
25.5. For Consumers, penalties apply only insofar as permitted by mandatory law and may be moderated by a competent court where required by law.
26. Indemnity
26.1. The Customer indemnifies the Company against all third-party claims related to:
a. products or services supplied in accordance with the Customer’s instructions;
b. incorrect, incomplete or misleading information provided by the Customer;
c. labels, packaging, claims, trademarks, designs, recipes, ingredients or materials provided by the Customer;
d. resale, export, storage, handling, processing or distribution by the Customer;
e. breach of law or third-party rights by the Customer;
f. product claims, marketing claims or nutritional/allergen information supplied or approved by the Customer;
g. Customer-supplied ingredients, packaging or raw materials.
26.2. The indemnity includes damages, penalties, costs, legal fees, settlement amounts, recall costs, destruction costs, relabelling costs, investigation costs and other losses suffered by the Company.
27. Complaints
27.1. The Customer must examine delivered products and performed services as soon as possible after delivery or performance.
27.2. Visible defects, transport damage, incorrect quantities, incorrect products or temperature deviations must be reported as soon as possible and preferably within 48 hours after delivery.
27.3. Hidden defects must be reported as soon as possible after discovery.
27.4. Business Customers must report complaints in writing within 7 days after discovery and in any case within 1 month after delivery or performance.
27.5. The Customer must provide a detailed description of the complaint, including photos, batch numbers, order numbers, delivery details, storage conditions, temperature logs, transport details and any other information needed for the Company to assess the complaint.
27.6. The Customer must demonstrate that the complaint relates to an agreement between the parties and that the products were stored, transported and handled correctly after delivery.
27.7. A complaint does not suspend the Customer’s payment obligations, unless mandatory law provides otherwise.
27.8. Products must not be returned without prior written permission from the Company.
27.9. If a complaint is justified, the Company may choose, at its discretion, to repair, replace, redeliver, credit or refund the defective part, unless mandatory law provides otherwise.
28. Notices and notice of default
28.1. Any notice of default to the Company must be given in writing.
28.2. It is the responsibility of the Customer to ensure that a notice of default reaches the Company correctly and on time.
28.3. A notice of default must clearly describe the alleged breach and must give the Company a reasonable period to remedy the breach, unless mandatory law provides otherwise.
29. Joint and several liability
29.1. If the Company enters into an agreement with several Customers or if several persons or entities are responsible for the order, each of them is jointly and severally liable for all amounts due to the Company and for all obligations under the agreement.
30. Liability of the Company
30.1. The Company is liable only for damage suffered by the Customer if and insofar as the damage is caused by intent or gross negligence of the Company, unless mandatory law provides otherwise.
30.2. If the Company is liable for damage, liability is limited to direct damage that results from or is directly related to the performance of an agreement.
30.3. The Company is not liable for indirect damage, consequential damage, loss of profit, loss of revenue, loss of savings, loss of goodwill, reputational damage, business interruption, missed opportunities, damage to third parties, recall costs, retailer penalties or other indirect losses, unless mandatory law provides otherwise.
30.4. If the Company is liable, its liability is limited to the amount paid by its liability insurance for the relevant case.
30.5. If the insurance does not pay or does not pay in full, liability is limited to the invoice amount for the specific order or part of the order to which the liability relates.
30.6. Images, photos, colours, drawings, descriptions, weights, dimensions, flavours, textures and product information on the website, in catalogues, in quotations or in other communications are indicative only and approximate, unless expressly confirmed as binding in writing.
30.7. Minor deviations in colour, taste, texture, shape, weight, volume, packaging, ingredients or presentation do not entitle the Customer to compensation, rejection, dissolution or suspension, unless the product no longer complies with the agreement or mandatory law provides otherwise.
30.8. Nothing in these terms excludes or limits liability where exclusion or limitation is not permitted by mandatory law.
30.9. Nothing in these terms excludes or limits liability for intent, gross negligence, death or personal injury where such exclusion is not permitted by law, mandatory product liability, mandatory food safety obligations, or any other liability that cannot legally be excluded or limited.
31. Expiry period
31.1. Every right of the Customer to compensation from the Company expires 12 months after the event from which the liability arises directly or indirectly, unless mandatory law provides otherwise.
31.2. This expiry period does not exclude the application of article 6:89 of the Dutch Civil Code where applicable.
32. Dissolution
32.1. The Customer may dissolve the agreement if the Company imputably fails to fulfil its obligations, unless the shortcoming does not justify dissolution due to its special nature or minor significance.
32.2. If fulfilment by the Company is not permanently impossible, dissolution by the Customer may take place only after the Company is in default and has been given a reasonable opportunity to perform, unless mandatory law provides otherwise.
32.3. The Company may dissolve the agreement with the Customer in whole or in part if:
a. the Customer does not fully or timely fulfil its obligations;
b. the Customer fails to pay on time;
c. the Customer refuses to cooperate;
d. the Customer provides incorrect or incomplete information;
e. circumstances give the Company good grounds to fear that the Customer will not fulfil its obligations properly;
f. the Customer is liquidated, bankrupt, insolvent, subject to suspension of payment or debt restructuring, or otherwise unable to pay its debts;
g. performance would violate law, food safety requirements, third-party rights or the Company’s internal quality standards.
32.4. Dissolution does not affect payment obligations for products delivered, services performed, costs incurred, work already done, damages, penalties, interest and collection costs.
33. Force majeure
33.1. In addition to article 6:75 of the Dutch Civil Code, any shortcoming by the Company cannot be attributed to the Company if the shortcoming results from a circumstance beyond the will or reasonable control of the Company, or if fulfilment of the obligation cannot reasonably be required from the Company.
33.2. Force majeure includes, but is not limited to, emergency situations, war, civil unrest, riots, natural disasters, fire, flooding, epidemics, pandemics, government measures, transport problems, delays or failures by suppliers, shortages of ingredients, shortages of packaging, energy disruptions, electricity failures, internet failures, computer failures, cyber incidents, strikes, staff shortages, illness, machinery failure, production problems, contamination, food safety concerns, product recalls, bad weather, import/export restrictions and other disruptions.
33.3. If force majeure prevents the Company from fulfilling one or more obligations, those obligations are suspended for as long as the force majeure situation continues.
33.4. If a force majeure situation lasts at least 30 calendar days, both parties may dissolve the affected agreement in writing in whole or in part.
33.5. The Company does not owe damages or compensation in a force majeure situation, even if the Company obtains any advantage as a result of the force majeure situation.
34. Changes to accepted orders
34.1. Changes to an accepted order are valid only if accepted by the Company in writing or electronically.
34.2. The Company may refuse any requested change to an accepted order.
34.3. If the Company accepts a change, any additional costs, delays, quality effects, production effects or consequences are for the Customer’s account, unless agreed otherwise in writing.
34.4. Changes requested after ingredients, packaging, labels, production capacity, transport or external services have been ordered or reserved may result in additional costs or non-refundable charges.
35. Changes to these general terms and conditions
35.1. The Company may amend or supplement these general terms and conditions.
35.2. Changes of minor importance may be made at any time.
35.3. Material changes will be communicated to the Customer where required by law or where reasonably appropriate.
35.4. Changes apply to new order requests, new orders, future deliveries and future agreements.
35.5. Changes do not apply to orders already accepted by the Company, unless the parties agree otherwise, the change is required by law, or the change is permitted under the agreement.
36. Transfer of rights and obligations
36.1. The Customer may not transfer rights or obligations under an agreement with the Company to third parties without prior written consent from the Company.
36.2. This provision has property law effect as referred to in article 3:83 paragraph 2 of the Dutch Civil Code.
36.3. The Company may transfer its rights and obligations to a group company, successor, purchaser of its business or third party involved in the performance of the agreement, unless mandatory law provides otherwise.
37. Consequences of nullity or voidability
37.1. If one or more provisions of these terms are null, voidable or unenforceable, this does not affect the validity of the other provisions.
37.2. A null, voidable or unenforceable provision will be replaced by a valid provision that comes as close as possible to the purpose and meaning of the original provision.
38. Applicable law and competent court
38.1. Dutch law applies exclusively to all offers, quotations, order requests, orders, agreements, deliveries, services, collaborations and other legal relationships between the Company and the Customer.
38.2. The applicability of the United Nations Convention on Contracts for the International Sale of Goods is excluded, unless mandatory law provides otherwise.
38.3. Disputes between the Company and Business Customers will be submitted exclusively to the competent court in The Hague, the Netherlands, unless mandatory law provides otherwise.
38.4. For Consumers, the competent court will be determined in accordance with mandatory law.
39. Final provision
39.1. These general terms and conditions are intended to cover both:
a. B2B supply, sale and distribution of Silk Road Ice Cream branded products; and
b. co-packing, private label, white label, product development and related production services provided under The Ice Cream Faktory brand.
39.2. If there is any uncertainty about whether a clause applies to branded product sales, wholesale supply or co-packing services, the clause will be interpreted reasonably in light of the nature of the relevant Agreement, the confirmed Order and the parties’ written arrangements.