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General terms and conditions

Article 1. General

  1. NICE B.V., hereinafter referred to as “NICE”, provides services and ice creams throughout the Netherlands, Belgium, and Germany.
  2. In these general terms and conditions, NICE refers to NICE B.V., located at Weesperzijde 80G, 1091EJ in Amsterdam. The counterparty is the natural person, partnership, company, or legal entity that has commissioned NICE to perform a service and/or deliver ice creams.
  3. These terms and conditions apply to every placed order, offer, quotation, and agreement between NICE and a counterparty on which NICE has declared these conditions applicable, to the extent that these conditions have not been expressly and in writing deviated from by the parties.
  4. The applicability of any purchasing or other conditions of the counterparty is expressly rejected.
  5. If one or more provisions in these general terms and conditions are wholly or partially void or annulled at any time, the remainder of these general terms and conditions shall remain in full force and effect. NICE and the counterparty shall, in consultation, agree on new provisions to replace the void or annulled provisions, taking into account as much as possible the purpose and scope of the original provisions.
  6. If there is any ambiguity regarding the interpretation of one or more provisions of these general terms and conditions, the interpretation shall be made ‘in the spirit’ of these provisions.
  7. If a situation arises between the parties that is not regulated in these general terms and conditions, this situation shall be assessed in accordance with the spirit of these general terms and conditions. If NICE does not insist on strict compliance with these conditions at all times, this shall not mean that the provisions thereof are not applicable, or that NICE would in any way lose the right to demand strict compliance with the provisions of these conditions in other cases.

Article 2 Offers and Proposals

  1. All quotations and proposals from NICE are non-binding, unless a term for acceptance is stated in the quotation. A quotation or proposal expires if the product to which the quotation or proposal relates is no longer available in the meantime.
  2. NICE cannot be held to its quotations or proposals if the counterparty can reasonably understand that the quotations or proposals, or any part thereof, contain an obvious mistake or clerical error.
  3. The prices stated in a quotation or proposal are exclusive of VAT and other government levies, any costs to be incurred in the context of the agreement, including travel and accommodation, shipping, and administration costs, unless otherwise indicated.
  4. If the acceptance (whether or not on minor points) deviates from the offer included in the quotation or proposal, NICE shall not be bound by it. The agreement will not be concluded in accordance with this deviating acceptance unless NICE indicates otherwise.
  5. A composite quotation does not oblige NICE to perform a part of the assignment at a corresponding part of the quoted price. Offers or quotations are not automatically valid for future orders.

Article 3. Duration of the Contract; Delivery Times, Execution, and Amendment of Agreement

  1. The agreement between NICE and the counterparty is entered into for an indefinite period unless otherwise follows from the nature of the agreement or if parties expressly and in writing agree otherwise.
  2. If a deadline has been agreed upon or specified for the completion of certain work or for the delivery of certain goods, this is never a strict deadline. In the event of exceeding a deadline, the counterparty must therefore notify NICE in writing of default. NICE must be given a reasonable period to still fulfill the agreement.
  3. If NICE requires data from the counterparty for the execution of the agreement, the execution period does not commence until after the counterparty has provided this data correctly and completely to NICE.
  4. The delivery of goods within the Netherlands shall take place at the counterparty’s delivery address, whereby NICE will charge the shipping costs to the counterparty unless otherwise agreed. The delivery address must be reasonably accessible for those means of transport that are generally used for delivery. The counterparty must ensure sufficient loading and unloading facilities at the delivery address. The counterparty shall do everything possible to ensure that the waiting time between the time of notification of arrival at the delivery address and the time at which the unloading of the goods to be delivered can commence is minimized.
  5. The counterparty is obliged to accept the goods when they are made available to him. If the counterparty refuses acceptance or is negligent in providing information or instructions necessary for delivery, NICE is entitled to store the goods at the counterparty’s expense and risk and to charge the transport costs.
  6. NICE has the right to have certain work performed by third parties.
  7. NICE is entitled to execute the agreement in various stages, to deliver goods in parts, and to invoice the part thus executed separately.
  8. If the agreement is executed in stages, NICE may suspend the execution of those parts that belong to a subsequent stage until the counterparty has approved the results of the preceding stage in writing.
  9. If during the execution of the agreement it appears that it is necessary to modify or supplement it for proper execution, the parties shall timely and in mutual consultation proceed to adjust the agreement. If the nature, scope, or content of the agreement, whether or not at the request or instruction of the counterparty, the competent authorities, etc., is changed and as a result, the agreement is changed qualitatively and/or quantitatively, this may also have consequences for what was originally agreed. As a result, the originally agreed amount may be increased or decreased. NICE will provide a price quotation for this as much as possible in advance. Furthermore, a change in the agreement may also change the originally specified execution period. The counterparty accepts the possibility of a change in the agreement, including the change in price and execution period.
  10. If the agreement is changed, including an addition, NICE is only entitled to execute it after approval has been given by the person authorized within NICE and the counterparty has agreed to the price and other conditions specified for execution, including the time at which execution will take place. Not executing or not immediately executing the amended agreement does not constitute default on the part of NICE and is also not grounds for the counterparty to terminate the agreement. Without thereby being in default, NICE may refuse a request to amend the agreement if this could have consequences, for example, for the work to be performed or the goods to be delivered.
  11. If the counterparty fails to properly fulfill what it is obliged to NICE, the counterparty is liable for all damages (including costs) incurred by NICE directly or indirectly as a result.
  12. If NICE agrees on a fixed price with the counterparty, NICE is nevertheless at all times entitled to increase this price without the counterparty being entitled to terminate the agreement on that ground, if the increase in the price results from a power or obligation under the law or regulations or is due to an increase in the price of raw materials, wages, etc., or for other reasons that were not reasonably foreseeable at the conclusion of the agreement.
  13. If the price increase, other than as a result of a change in the agreement, exceeds 10% and occurs within three months after the conclusion of the agreement, only the counterparty entitled to title 5 section 3 of Book 6 of the Dutch Civil Code is entitled to terminate the agreement by written declaration, unless NICE is then still willing to execute the agreement based on the originally agreed terms, or if the price increase results from a power or obligation under the law or if it is agreed that delivery will take place more than three months after the purchase.

Article 4. Suspension, Termination, and Interim Termination of the Agreement

  1. NICE is authorized to suspend performance of obligations or terminate the agreement if:
  1. Furthermore, NICE is entitled to terminate the agreement if circumstances arise that are of such a nature that the performance of the agreement is impossible, or if circumstances arise otherwise that are of such a nature that unchanged continuation of the agreement cannot reasonably be expected of NICE.
  2. If the agreement is terminated, NICE’s claims against the counterparty become immediately due and payable. If NICE suspends performance of obligations, it retains its rights under the law and the agreement.
  3. If NICE proceeds to suspend or terminate, it is in no way obliged to compensate for any damage and costs incurred thereby.
  4. If the termination is attributable to the counterparty, NICE is entitled to compensation for the directly and indirectly incurred damages, including costs.
  5. If the counterparty fails to fulfill its obligations arising from the agreement and this non-fulfillment justifies termination, NICE is entitled to immediately and with immediate effect terminate the agreement without any obligation on its part to pay any damages or compensation, whereas the counterparty, due to default, is obliged to pay damages or compensation.
  6. If the agreement is terminated prematurely by NICE, NICE will, in consultation with the counterparty, ensure the transfer of work still to be performed to third parties. This is unless the termination is attributable to the counterparty. If the transfer of work entails additional costs for NICE, these will be invoiced to the counterparty. The counterparty is obliged to pay these costs within the specified period, unless otherwise indicated by NICE.
  7. In the event of liquidation, (application for) suspension of payments or bankruptcy, seizure – if and insofar as the seizure is not lifted within three months – against the counterparty, debt restructuring, or any other circumstance whereby the counterparty can no longer freely dispose of its assets, NICE is free to terminate the agreement immediately and with immediate effect or cancel the order or agreement, without any obligation on its part to pay any damages or compensation. NICE’s claims against the counterparty become immediately due and payable in that case.
  8. If the counterparty cancels a placed order in whole or in part, the goods ordered or prepared for it, increased by any costs of delivery and removal thereof, as well as the labor time reserved for the execution of the agreement, will be invoiced to the Counterparty in full.

Article 5. Force Majeure

  1. NICE shall not be obliged to fulfill any obligation towards the counterparty if he is hindered from doing so as a result of circumstances not attributable to fault, and which are not at his expense under the law, a legal act, or prevailing views in society.
  2. Force majeure, as referred to in these general terms and conditions, shall be understood to mean, in addition to what is understood by it in law and jurisprudence, all external causes, foreseen or unforeseen, over which NICE cannot exert influence, but which prevent NICE from fulfilling its obligations. This includes strikes in the business of NICE or third parties. NICE also has the right to invoke force majeure if the circumstance that prevents (further) performance of the agreement occurs after NICE should have fulfilled its obligation.
  3. NICE may suspend the obligations under the agreement during the period that force majeure continues. If this period lasts longer than two months, each party is entitled to terminate the agreement, without obligation to compensate damages to the other party.
  4. Insofar as NICE has partially fulfilled its obligations under the agreement at the time force majeure occurs, or will be able to fulfill them, and if the fulfilled or fulfillable part has independent value, NICE is entitled to separately invoice the part already fulfilled or to be fulfilled. The counterparty is obliged to pay this invoice as if it were a separate agreement.

Article 6. Payment and Collection Costs

  1. Payment must be made within 14 days from the invoice date, in the currency invoiced, in a manner specified by NICE, unless otherwise indicated in writing by NICE. NICE is entitled to invoice periodically.
  2. If the counterparty fails to make timely payment of an invoice, the counterparty shall be in default by operation of law. In that case, the counterparty shall owe interest of 1% per month, unless the statutory interest is higher, in which case the statutory interest shall be due. The interest on the outstanding amount shall be calculated from the moment the counterparty is in default until the full amount owed is paid.
  3. NICE has the right to apply payments made by the counterparty first to cover costs, then to cover accrued interest, and finally to cover the principal amount and ongoing interest.
  4. NICE may refuse an offer of payment without being in default if the counterparty designates a different order for allocating the payment. NICE may refuse full repayment of the principal amount if the accrued and ongoing interest and collection costs are not also paid.
  5. The counterparty is never entitled to set-off against amounts owed to NICE.
  6. Objections to the amount of an invoice do not suspend the payment obligation. The counterparty, who is not entitled to invoke section 6.5.3 (Articles 231 to 247 Book 6 Civil Code), is also not entitled to suspend payment of an invoice for any other reason.
  7. If the counterparty is in default or fails to fulfill its obligations (timely), all reasonable costs incurred to obtain satisfaction out of court shall be borne by the counterparty. The extrajudicial costs shall be calculated based on what is customary in Dutch collection practice, currently according to the calculation method of Report Voorwerk II. However, if NICE has incurred higher costs for collection that were reasonably necessary, the actual costs incurred shall be eligible for reimbursement. Any judicial and enforcement costs incurred shall also be recovered from the counterparty. The counterparty shall also owe interest on the incurred collection costs.
  8. The counterparty must provide the correct invoice details prior to the agreement. The invoice will be sent by email, and the date of dispatch shall be the invoice date.

Article 7. Retention of Title

  1. If the counterparty is established in Germany, Article 15 applies, and Article 7 is void. For other agreements, Articles 7.2-7.6 apply.
  2. All goods delivered by NICE under the agreement remain the property of NICE until the counterparty has properly fulfilled all obligations arising from the agreement(s) concluded with NICE.
  3. Goods delivered by NICE, which fall under the retention of title pursuant to paragraph 2, may not be resold or used as a means of payment under any circumstances. The counterparty is not authorized to pledge or encumber the goods falling under the retention of title in any other way.
  4. The counterparty must always do everything that can reasonably be expected of them to safeguard the ownership rights of NICE.
  5. If third parties seize the goods delivered under retention of title or wish to establish or enforce rights thereto, the counterparty is obliged to immediately notify NICE thereof.
  6. The counterparty undertakes to insure the goods delivered under retention of title against fire, explosion, water damage, theft, and to keep them insured, and to present the policy of this insurance to NICE for inspection upon first request. In the event of any payout from the insurance, NICE is entitled to these proceeds. To the extent necessary, the counterparty undertakes in advance to cooperate with NICE in all respects that may be necessary or desirable in this regard.
  7. In the event that NICE wishes to exercise its ownership rights indicated in this article, the counterparty hereby gives unconditional and irrevocable consent in advance to NICE and third parties designated by NICE to enter all places where NICE’s properties are located and to reclaim those goods.

Article 8. Guarantees, Returns Policy, Inspection and Complaints, Statute of Limitations,

  1. The goods to be delivered by NICE meet the usual requirements and standards that can reasonably be set at the time of delivery and for which they are intended for normal use in the Netherlands. The warranty mentioned in this article applies to goods intended for use within the Netherlands. When used outside the Netherlands, the counterparty must verify for themselves whether such use is suitable and meets the conditions imposed thereon. In such cases, NICE may impose different warranty and other conditions regarding the goods to be delivered or services to be performed.
  2. The right of withdrawal does not apply to the counterparty due to the nature of the products and storage conditions. Should the counterparty be dissatisfied for any reason and wish to claim warranty, Articles 8.3-8.11 apply.
  3. The warranty mentioned in paragraph 1 of this article applies for a period of 15 days after delivery, unless the nature of the delivered goods dictates otherwise or unless otherwise agreed by the parties. If the warranty provided by NICE concerns goods produced by a third party, the warranty is limited to the warranty provided by the manufacturer of the goods, unless stated otherwise.
  4. Any form of warranty becomes void if a defect arises as a result of or stems from improper or inappropriate use thereof, use after the expiry date, incorrect storage, or maintenance by the counterparty and/or by third parties, or if, without written permission from NICE, the counterparty or third parties have made or attempted to make changes to the goods, attached other items to them that should not be attached thereto, or if they have processed or treated them in a manner other than as prescribed. The counterparty is also not entitled to claim warranty if the defect arises from or is the result of circumstances beyond NICE’s control, including weather conditions (such as, for example, but not limited to, extreme rainfall or temperature fluctuations).
  5. The counterparty is obliged to (have) inspect(ed) the delivered goods immediately at the time the goods are made available to them or the relevant work has been performed. The counterparty must examine whether the quality and/or quantity of the delivered goods correspond(s) to what has been agreed and meet(s) the requirements that the parties have agreed upon. Any visible defects must be reported to NICE in writing, electronically, or by telephone within seven days after delivery. Any non-visible defects must be reported to NICE in writing, electronically, or by telephone immediately, but in any case no later than fourteen days after discovery thereof. The notification must contain as detailed a description of the defect as possible so that NICE can respond adequately. The counterparty must allow NICE the opportunity to investigate a complaint.
  6. If the counterparty lodges a complaint in a timely manner, this does not suspend their payment obligation. In that case, the counterparty remains obliged to accept and pay for the goods otherwise ordered.
  7. If a defect is reported later, the counterparty no longer has the right to repair, replacement, or compensation.
  8. If it is established that a product is defective and a timely complaint has been made in this regard, NICE will, at its option, replace the defective product within a reasonable time after its return, or, if return is reasonably not possible, provide written notice of the defect by the counterparty, or repair it or provide alternative compensation to the counterparty. In the case of replacement, the counterparty is obliged to return the replaced product to NICE and transfer ownership thereof to NICE, unless otherwise indicated by NICE.
  9. If it is established that a complaint is unfounded, the costs incurred thereby, including investigation costs, shall be borne in full by the counterparty.
  10. After the expiry of the warranty period, all costs for repair or replacement, including administration, shipping, and travel costs, will be charged to the counterparty.
  11. In deviation from the statutory limitation periods, the limitation period for all claims and defenses against NICE and the third parties involved by NICE in the performance of an agreement is one year.

Article 9. Liability

  1. If NICE were to be liable, such liability is limited to what is stipulated in this provision.
  2. NICE is not liable for any damages of any kind resulting from the reliance on incorrect and/or incomplete information provided by or on behalf of the counterparty.
  3. If NICE were liable for any damages, NICE’s liability is limited to a maximum of once the invoice value of the order, or to that part of the order to which the liability relates.
  4. NICE’s liability is in any case always limited to the amount of compensation paid by its insurer, if applicable.
  5. NICE is only liable for direct damages.
  6. Direct damages solely refer to the reasonable costs necessary to determine the cause and extent of the damage, insofar as the determination relates to damage within the meaning of these terms, the reasonable costs incurred to make NICE’s defective performance comply with the agreement, to the extent that these can be attributed to NICE, and reasonable costs incurred to prevent or limit damage, provided that the counterparty demonstrates that these costs have led to a limitation of direct damages as referred to in these general terms and conditions.
  7. NICE is never liable for indirect damages, including consequential damages, lost profits, missed savings, and damages due to business interruption.
  8. The limitations of liability set forth in this article do not apply if the damage is attributable to intent or gross negligence on the part of NICE or its managerial subordinates.

Article 10. Transfer of Risk

  1. The risk of loss, damage, or depreciation passes to the counterparty at the moment when the goods are placed under the control of the counterparty.

Article 11. Indemnification

  1. The counterparty indemnifies NICE against any claims from third parties who suffer damage in connection with the execution of the agreement and for which the cause is attributable to factors other than NICE.
  2. If NICE is held liable by third parties for this reason, the Counterparty is obligated to assist NICE both out of court and in court and to take immediate action that may be expected of them in that case. If the counterparty fails to take adequate measures, NICE is entitled, without notice of default, to take action itself. All costs and damages incurred by NICE and third parties as a result thereof shall be fully borne by and at the risk of the counterparty.

Article 12. Intellectual Property

  1. NICE reserves all rights and powers to which it is entitled under the Copyright Act and other intellectual property laws and regulations. NICE has the right to use the knowledge gained as a result of the execution of an agreement for its own purposes, provided that no strictly confidential information of the counterparty is disclosed to third parties.

Article 13. Applicable Law and Disputes

  1. Dutch law applies to all legal relationships in which NICE is a party, even if an obligation is wholly or partially performed abroad or if the party involved in the legal relationship resides there. The Vienna Sales Convention is excluded. However, Article 15 is an exception to this rule.
  2. The court in the place of establishment of NICE has exclusive jurisdiction to hear disputes, unless the law mandatorily prescribes otherwise. Nevertheless, NICE has the right to submit the dispute to the competent court according to the law.
  3. Parties will only resort to a court after they have made every effort to settle a dispute amicably.

Article 14. Location and Amendment of Conditions

  1. These terms and conditions are deposited with the Chamber of Commerce Amsterdam, under Chamber of Commerce number 57704538 and establishment number 000027119068.
  2. The version of the terms and conditions that was deposited at the time of the establishment of the legal relationship with NICE shall always apply.
  3. The Dutch text of the general terms and conditions shall always prevail for the interpretation thereof.
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