Terms & Conditions

General terms and conditions of Kivo Petfood B.V.

ARTICLE 1 | DEFINITIONS

In these general terms and conditions, the following terms, always indicated with a capital letter, are used with the meanings given below:

Kivo Petfood: Kivo Petfood B.V., the user of these general terms and conditions, located at De Run 4304, 5503LN Veldhoven, registered in the Chamber of Commerce under registration number 83224513.

Customer: any natural or legal person with whom Kivo Petfood has entered or intends to enter into an Agreement.

Consumer: a Customer, a natural person, not acting in the course of a profession or business.

Parties: Kivo Petfood and the Customer collectively.

Agreement: any agreement between the Parties under which Kivo Petfood undertakes to sell and deliver Products to the Customer.

Products: goods to be delivered by Kivo Petfood to the Customer under the Agreement, including but not limited to, food, care products, and accessories for dogs and cats.

Written: written communication, communication by email, or any other form of communication that, given the state of the art and prevailing social standards, can be equated with it.

ARTICLE 2 | GENERAL PROVISIONS

These general terms and conditions apply to any offer from Kivo Petfood and every Agreement.

Any general terms and conditions of the Customer, referred to by any name, do not apply to the Agreement.

Any deviation from these general terms and conditions can only be made explicitly and in writing. If and to the extent that what the Parties have explicitly and in writing agreed deviates from these general terms and conditions, what the Parties have explicitly and in writing agreed applies.

Invalidity or nullity of one or more provisions of these general terms and conditions or the Agreement itself does not affect the validity of the other clauses. In such a case, the Parties are obliged to consult with each other to establish a replacement provision, taking into account as much as possible the purpose and purport of the original provision.

ARTICLE 3 | OFFER AND FORMATION OF AGREEMENTS

Any offer from Kivo Petfood is without obligation, even if a term for acceptance is stated. Kivo Petfood can revoke its offer immediately or as soon as possible after its acceptance by the Customer.

The Customer cannot derive any rights from an offer from Kivo Petfood that contains an obvious mistake or error.

An Agreement is concluded by offer and acceptance. If the Customer’s acceptance deviates from Kivo Petfood’s offer, the Agreement is not concluded in accordance with this deviating acceptance, unless Kivo Petfood indicates otherwise.

If Kivo Petfood provides the Customer with a written order confirmation following an orally concluded Agreement, it is deemed that this confirmation correctly and completely reflects the Agreement, unless the Customer has objected in writing within two working days after receiving the confirmation.

If the Customer concludes the Agreement on behalf of another natural or legal person, he declares by entering into the Agreement to be authorized to do so. The Customer is jointly and severally liable with this (legal) person for the performance of the obligations arising from that Agreement.

ARTICLE 4 | DELIVERY TIMES

Any delivery times to which Kivo Petfood has committed itself towards the Customer are indicative, non-binding deadlines.

Kivo Petfood is not in default until after the Customer has given Kivo Petfood written notice of default, specifying a reasonable period for performance, and Kivo Petfood has failed to perform within that period.

In case of default by Kivo Petfood, the Customer has the right to dissolve the Agreement for that part to which the default relates, but never to additional damages.

ARTICLE 5 | DELIVERY

Delivery of Products to Consumers takes place at the agreed place and manner, or in the manner customary for this type of transaction. In case of delivery, delivery takes place at the delivery address specified by the Consumer.

Unless explicitly and in writing agreed otherwise, delivery of the Products to non-Consumers within the European Union (EU) takes place based on EX Works, Kivo Petfood’s location, in accordance with the most recent version of the Incoterms. In case of delivery to non-Consumers outside the EU, delivery takes place Free Carrier (FCA), unless explicitly and in writing agreed otherwise, also in accordance with the most recent version of the Incoterms.

Regardless of the provisions of the preceding paragraphs of this article, the Parties may agree that Kivo Petfood takes care of the transport. In that case, the risk of storage, loading, transport, and unloading also rests with the Customer.

The risk of loss and damage to the Products passes to the Customer when Kivo Petfood makes the Products available to the Customer in accordance with the Agreement. In case of delivery to a Consumer, the risk of loss and damage passes to the Consumer when the Products have been received by or on behalf of the Consumer.

If the agreed delivery time is exceeded, the Customer, without prejudice to the provisions regarding default by Kivo Petfood in article 4.2, is never entitled to refuse to accept the Products and/or to pay the amount due to Kivo Petfood under the Agreement.

If the Products could not be delivered due to circumstances on the part of the Customer, the risk of loss and damage passes to the Customer from the moment of refusal of the Products by the Customer.

ARTICLE 6 | PRICES AND PAYMENT

All prices mentioned by Kivo Petfood are in euros and excluding turnover tax (VAT), unless explicitly stated otherwise.

Kivo Petfood reserves the right to adjust its prices at any time. Price changes do not affect Agreements already concluded.

Payment must be made within 14 days after the invoice date, in a manner to be indicated by Kivo Petfood and in the currency in which the invoice is made.

If the Customer fails to pay within the aforementioned period, the Customer is in default by operation of law. In that case, the Customer owes an interest of 1% per month, unless the statutory interest is higher, in which case the statutory interest applies. The interest on the amount due will be calculated from the moment that the Customer is in default until the moment of full payment of the amount due.

All costs, both judicial and extrajudicial, incurred by Kivo Petfood as a result of the Customer’s failure to fulfill its payment obligations, are for the account of the Customer. The extrajudicial costs are set at 15% of the principal sum with a minimum of €150.

ARTICLE 7 | LIABILITY

Kivo Petfood is only liable towards the Customer or third parties for direct damage caused by a demonstrable shortcoming on the part of Kivo Petfood in the fulfillment of its obligations under the Agreement.

Kivo Petfood’s liability towards the Customer is limited to the amount paid out by its insurer in the relevant case.

Kivo Petfood is not liable for indirect damage, including consequential damage, lost profit, lost savings, and damage due to business interruption.

The limitations of liability included in this article do not apply if the damage is due to intent or gross negligence on the part of Kivo Petfood or its managerial subordinates.

ARTICLE 8 | COMPLAINTS

The Customer is obliged to check the delivered Products upon receipt for visible defects and to report these to Kivo Petfood immediately, but in any case within two working days after receipt of the Products.

Complaints about the delivered Products do not suspend the payment obligation of the Customer.

Complaints about the delivered Products give the Customer no right to return the Products, unless Kivo Petfood agrees otherwise in writing.

Complaints that are not submitted in time or do not meet the conditions set in this article do not have to be processed by Kivo Petfood and do not entitle the Customer to any rights.

ARTICLE 9 | FORCE MAJEURE

In the event of force majeure, Kivo Petfood is entitled to suspend its obligations under the Agreement for the duration of the force majeure situation.

Force majeure means, in addition to what is understood in law and jurisprudence, all external causes, foreseen or unforeseen, over which Kivo Petfood cannot influence, but as a result of which Kivo Petfood is unable to fulfill its obligations.

If the force majeure situation has lasted for more than two months, both Parties have the right to dissolve the Agreement, without any obligation to pay damages to the other Party.

ARTICLE 10 | INTELLECTUAL PROPERTY RIGHTS

All intellectual property rights to the Products, as well as all derived works, remain with Kivo Petfood or its licensors.

The Customer is not permitted to remove or change any indication regarding copyrights, trademarks, trade names, or other intellectual property rights from the Products.

The Customer is not permitted to reproduce, disclose, or make available to third parties the Products, unless explicitly agreed otherwise with Kivo Petfood in writing.

ARTICLE 11 | LIABILITY AND INDEMNIFICATION

The Purchaser bears the damage caused by inaccuracies or incompleteness in the information provided by him for the execution of the Agreement, any other shortcoming in fulfilling the obligations of the Purchaser arising from law or the Agreement, as well as any other circumstance that cannot be attributed to Kivo Petfood.

Kivo Petfood is never liable for indirect damages, including but not limited to lost profits, loss of revenue, personal injury, and damages resulting from business interruption. Subject to the provisions in the rest of these general terms and conditions, and in particular the provisions of clause 4, Kivo Petfood’s liability towards the Purchaser is limited to direct damages resulting from a attributable shortcoming by Kivo Petfood in fulfilling its obligations under the Agreement. A attributable shortcoming is understood to mean a shortcoming that a competent professional should and could have avoided, taking into account normal diligence and the professional knowledge and resources required for the execution of the Agreement. Direct damages are exclusively understood to mean:

reasonable costs to determine the cause and extent of the damage, to the extent that the determination relates to damage eligible for compensation under these general terms and conditions;
any reasonable costs incurred to make the defective performance by Kivo Petfood comply with the Agreement, insofar as these can be attributed to Kivo Petfood;
reasonable costs incurred to prevent or limit damage, to the extent that the Purchaser demonstrates that these costs have led to a limitation of direct damages under these general terms and conditions.
If Kivo Petfood is liable for any damage, Kivo Petfood always has the right to repair this damage. The Purchaser must allow Kivo Petfood the opportunity to do so, failing which any liability of Kivo Petfood in this regard lapses.

Kivo Petfood’s liability is limited to replacement of the Products to which Kivo Petfood’s liability relates. If replacement is not possible, Kivo Petfood’s liability is limited to the invoice value of the Agreement, or that part of the Agreement to which Kivo Petfood’s liability relates.

Notwithstanding the forfeiture periods referred to in Article 6, the limitation period for all legal actions and defenses against Kivo Petfood is one year. Contrary to the previous sentence, claims and defenses accruing to Consumers based on facts that would justify the assertion that a consumer purchase does not comply with the Agreement expire after two years.

The Purchaser indemnifies Kivo Petfood 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 (an)other than Kivo Petfood.

In the case of a consumer purchase, the limitations in this article do not extend beyond what is permitted under Article 7:24 paragraph 2 of the Dutch Civil Code.

ARTICLE 12 | RESERVATION OF OWNERSHIP

All Products delivered by Kivo Petfood remain its property until the Purchaser has duly fulfilled all payment obligations under the respective Agreement.

Unless to the extent reasonably permissible in the context of its normal business operations, the Purchaser is prohibited from selling, pledging, or otherwise encumbering the Products subject to reservation of ownership.

The Purchaser is obliged to keep the Products delivered under reservation of ownership with due care and as recognizable property of Kivo Petfood.

If third parties seize the Products subject to reservation of ownership by Kivo Petfood, or wish to establish or assert rights thereto, the Purchaser is obliged to inform Kivo Petfood thereof as soon as possible.

In the event of a breach of the provisions of this article or resale by the Purchaser in the context of its normal business operations, the amounts owed by the Purchaser to Kivo Petfood become immediately due and payable.

The Purchaser unconditionally grants permission to Kivo Petfood or third parties designated by Kivo Petfood to enter all places where the Products subject to reservation of ownership are located. Upon first request, the Purchaser must provide Kivo Petfood with all information necessary to exercise its ownership rights, subject to a penalty of € 500 per day that the Purchaser is in default, without Kivo Petfood having to put the Purchaser in default. All reasonable costs associated with the exercise of the ownership rights of Kivo Petfood are borne by the Purchaser.

If the Purchaser, after the Products have been delivered by Kivo Petfood, has fulfilled its obligations, the reservation of ownership with respect to these Products is revived if the Purchaser fails to fulfill its obligations under a subsequently concluded Agreement.

ARTICLE 13 | RETURN POLICY

Wholesale and retail cannot return anything unless it concerns factory defects.
Consumers cannot return or exchange fresh meat because the cooling chain would be interrupted and there can no longer be any guarantee that it is still good. Only in the case of factory defects.
Other products can be exchanged or returned within 7 days in the original sealed packaging with receipt. Discounted items cannot be returned or exchanged.

ARTICLE 14 | FINAL PROVISIONS

Kivo Petfood is entitled to transfer its rights and obligations under the Agreement to a third party.

Dutch law exclusively applies to every Agreement and all legal relationships arising therefrom between the Parties.

Parties will only appeal to a judge after they have made optimal efforts to settle the dispute amicably.

To the extent permitted by law, the competent court within the jurisdiction of the place of establishment of Kivo Petfood is exclusively designated to hear any judicial disputes between the Parties.

In case these general terms and conditions are available in multiple languages, the Dutch version thereof is always decisive for the interpretation of the provisions contained therein.