Optimering – trading as Gastroplan
CVR no. 45312909
Bellmansgade 11, 2100 København Ø
www.gastroplan.dk
kontakt@gastroplan.dk
1. Scope
1.1
These Supplier and Collaboration Partner Terms (the “Terms”) apply to every collaboration between Optimering, trading as Gastroplan, hereinafter referred to as “Gastroplan”, and any supplier, collaboration partner, subconsultant, freelancer, agency, specialist, adviser, recruitment partner, wholesaler, service provider, manufacturer, lessor, contractor, damage restoration company, technical supplier, marketing partner, web partner, photographer, video producer, temporary staffing partner or other external party, hereinafter referred to as the “Collaboration Partner”.
1.2
The Terms apply to one-off assignments, ongoing collaborations, referral agreements, commission agreements, project-based collaborations, subcontracting agreements, strategic partnerships, white-label collaborations, joint quotations, customer referrals, supplier negotiations and other commercial collaborations.
1.3
The Terms apply unless otherwise expressly agreed in writing between the parties. In the event of any inconsistency between these Terms and a specific written collaboration agreement, the specific collaboration agreement shall take precedence, but only in respect of the specific provision from which there is a clear and express deviation.
1.4
The Collaboration Partner’s own standard terms, terms of sale, delivery terms, payment terms or other unilaterally stipulated terms shall not apply unless Gastroplan has expressly accepted them in writing.
2. Formation of the agreement
2.1
A binding agreement between the parties shall be deemed to have been entered into when Gastroplan and the Collaboration Partner have confirmed in writing the material terms of the collaboration, including the content of the assignment, price, commission, liability, deliverable, timetable, collaboration model and invoicing route.
2.2
Written acceptance may be given by email, electronic signature, text message, messaging service or other verifiable communication.
2.3
If the Collaboration Partner commences delivery after it has verifiably received the assignment confirmation and these Terms, the assignment confirmation and the Terms shall be deemed accepted.
If the collaboration model or another material term is unclear, the work must be suspended until the matter has been clarified in writing.
3. Nature of the collaboration
3.1
The collaboration may consist of the Collaboration Partner supplying goods, services, advice, labour, products, equipment, software, marketing, technical solutions, recruitment assistance, photography, video, design, web development, damage restoration services, project assistance, subconsultancy services or other services to Gastroplan, Gastroplan’s customers or projects in which Gastroplan is involved.
3.2
The collaboration may also consist of Gastroplan referring customers, leads, projects, assignments or commercial opportunities to the Collaboration Partner in return for payment of a commission, introduction fee, fixed fee or other agreed compensation.
3.3
The Collaboration Partner is an independent business or external supplier and is not employed by Gastroplan.
The Collaboration Partner shall perform its services for its own account and at its own risk and shall be responsible for its own taxes, duties, insurance, authorisations, employees, subcontractors and operating costs.
The collaboration does not establish an employment relationship, partnership, franchise, joint venture, corporate relationship or general power of attorney.
3.4
Without Gastroplan’s prior written consent, the Collaboration Partner may not make statements on Gastroplan’s behalf, enter into agreements on Gastroplan’s behalf, provide guarantees or otherwise bind Gastroplan.
The limited invoicing and payment authorisation under clause 9 is not a general power of attorney.
3.5
For each deliverable, it must be specified in writing whether:
a) Gastroplan is the Customer’s principal supplier and the Collaboration Partner supplies Gastroplan as a subcontractor; or
b) the Collaboration Partner is the Customer’s direct supplier, while Gastroplan solely refers, coordinates and administers invoicing and payment.
The models must not be combined for the same deliverable. If the model has not been specified, it must be clarified in writing before the work commences.
4. Protected Customers and introductions
4.1
A “Protected Customer” is a specific legal person that Gastroplan verifiably introduces or refers, or to which Gastroplan gives the Collaboration Partner genuine access, with a view to a possible or existing commercial collaboration.
Gastroplan does not own the Customer but is entitled to the agreed customer protection and agreed fee.
4.2
A documented introduction occurs when Gastroplan establishes direct contact, arranges a meeting, forwards a specific enquiry, involves the Collaboration Partner in a project or, in another verifiable manner, provides genuine access to dialogue with the Customer.
A passing reference or publicly available information is not in itself sufficient.
4.3
The Collaboration Partner may have such direct professional and practical contact with the Protected Customer as is necessary for the deliverable.
Direct agreements, quotations, invoicing and further deliverables are permitted when registered and settled through Gastroplan in accordance with clauses 5 and 9.
4.4
The customer protection and fee cover all revenue between the Collaboration Partner and the Protected Customer during the protection period, including the original assignment, continuations, repeat purchases, extensions, new assignments, service agreements and other deliverables.
The protection is therefore not limited to the assignment that originally led to the introduction.
4.5
The customer protection shall not apply if, no later than 5 business days after the introduction, the Collaboration Partner documents in writing that it already had an active customer agreement or a specific and reciprocal sales dialogue with the Customer during the preceding 12 months.
An old contact, CRM entry, unanswered sales approach or general market knowledge is not sufficient.
4.6
The protection period shall run for 24 months from the first agreement, delivery or invoice between the Collaboration Partner and the Protected Customer.
The period shall not be extended or restart as a result of subsequent contact, new assignments, invoicing or other project activity.
4.7
The Collaboration Partner may not use group companies, subcontractors, new companies, intermediaries, cash payments, barter transactions or other arrangements with the purpose or material effect of concealing or circumventing Gastroplan’s fee.
5. Gastroplan’s fee
5.1
Where Gastroplan introduces a Protected Customer to the Collaboration Partner and the parties have separately agreed a fee in writing, Gastroplan is entitled to the agreed referral and network fee under this clause.
5.2
The fee shall be calculated at the rate agreed in writing on the Collaboration Partner’s total invoicing exclusive of VAT to the Protected Customer during the protection period. Acceptance of the Terms, including by submitting a form, does not in itself establish a fee rate or payment obligation.
Unless the parties agree another period in writing, the protection period in clause 4.6 shall apply.
5.3
The basis of calculation shall include all amounts exclusive of VAT that the Collaboration Partner or a related or group company invoices, or is entitled to invoice, to the Customer for goods and services.
The Collaboration Partner’s own payroll, staff, travel, materials, financing, administration and other costs may not be deducted.
5.4
Credit notes, discounts, refunds, price reductions or waivers shall not reduce Gastroplan’s fee if they are attributable to errors or defects on the part of the Collaboration Partner, voluntary actions, failure to recover payment or circumstances for which Gastroplan is not responsible.
An adjustment shall reduce the fee only if Gastroplan approves it in writing or it is attributable to a documented error in the original invoicing.
5.5
The fee shall be earned and become due when the Collaboration Partner enters into the agreement, commences delivery, becomes entitled to payment or invoices the Customer, whichever occurs first.
The Customer’s failure to pay shall not release the Collaboration Partner from the fee unless otherwise agreed in writing.
5.6
If Gastroplan receives the Customer’s payment under clause 9, Gastroplan shall issue the Collaboration Partner with an invoice for the fee plus VAT and set off the invoice in the settlement.
If, exceptionally, the Collaboration Partner receives payment directly, the Collaboration Partner must inform Gastroplan immediately, after which Gastroplan may invoice the fee with a payment term of 8 days.
5.7
No later than 5 business days after the end of each month, the Collaboration Partner must submit a statement of agreements, deliverables, invoices, credit notes and payments relating to each Protected Customer.
Gastroplan may require relevant documentation and, where there are reasonable grounds to suspect errors or circumvention, may arrange for an independent auditor to verify the statement subject to confidentiality.
5.8
The Collaboration Partner may not split, postpone, reclassify, credit, set off or transfer invoicing or payment with the purpose or material effect of reducing or circumventing Gastroplan’s fee.
5.9
If Gastroplan actually receives an equivalent fee from the Customer in respect of the same revenue, the amount shall be set off against the Collaboration Partner’s payment obligation on a krone-for-krone basis.
Gastroplan may not receive a double fee in respect of the same revenue.
6. Gastroplan as subcontractor or additional service
6.1
If the Collaboration Partner offers Gastroplan’s services as part of its own deliverables, packaged solutions, projects, damage restoration services, advice, operational assistance, reopening, recruitment, supplier negotiations, menu development, training or other customer solutions, this must take place under a prior written agreement with Gastroplan.
6.2
The Collaboration Partner may not market, price, promise, describe or sell Gastroplan’s services to a third party without Gastroplan’s prior approval of the service content, price, conditions of delivery and liability.
6.3
If Gastroplan’s services are included as an additional service in the Collaboration Partner’s quotation to a customer, it must be clearly stated whether Gastroplan is the customer’s direct contracting party, a subcontractor to the Collaboration Partner or an external adviser engaged for the project.
6.4
The Collaboration Partner is responsible for its own descriptions, promises, guarantees and sales representations to the customer. Gastroplan shall not be bound by representations, guarantees or expectations given by the Collaboration Partner without Gastroplan’s written approval.
7. Delivery requirements and professional standards
7.1
The Collaboration Partner must provide its services professionally, loyally, on time and in accordance with good industry practice, applicable legislation, relevant regulatory requirements, agreed quality standards and the specific project assumptions.
7.2
The Collaboration Partner must ensure that deliverables, products, advice, materials, staff, equipment and other services are suitable for the agreed purpose and meet the requirements that may reasonably be expected of a professional supplier in the relevant field.
7.3
The Collaboration Partner is responsible for its own employees, subcontractors, freelancers and other persons used by the Collaboration Partner to perform the assignment.
7.4
The Collaboration Partner must inform Gastroplan before using a subcontractor for an assignment if this may affect quality, liability, confidentiality, data security, customer contact or performance of the project.
8. Loyalty and conflicts of interest
8.1
The Collaboration Partner must act loyally in the collaboration with Gastroplan and may not act in a manner that unjustifiably harms Gastroplan’s commercial interests, reputation, customer relationships, negotiating position or business opportunities.
8.2
The Collaboration Partner must immediately inform Gastroplan in writing of any actual or potential conflict of interest, including where the Collaboration Partner has its own financial interests in a recommended supplier, receives payment from a third party or may otherwise have interests conflicting with those of Gastroplan or the Customer.
8.3
The Collaboration Partner may not receive any undisclosed commission, kickback, bonus, discount, benefit, gift or other financial advantage from a third party in relation to a customer, assignment or deliverable in which Gastroplan is involved, unless this has been disclosed in writing to and accepted by Gastroplan in advance.
9. Prices, invoicing and consolidated payment
9.1
The Collaboration Partner’s price, deliverable, invoicing route and role must be agreed in writing before delivery commences.
9.2
Unless otherwise expressly stated, all prices shall be exclusive of VAT, duties, charges, transport, disbursements and third-party costs.
9.3
If Gastroplan is the Customer’s principal supplier, the Collaboration Partner shall invoice Gastroplan for the services and costs that Gastroplan has approved in writing in advance.
The invoice must comply with applicable invoicing requirements and clearly identify the agreed deliverable.
9.4
If the Collaboration Partner is the Customer’s direct supplier, the Collaboration Partner shall issue the invoice to the Customer in its own legal name, under its own CVR number and in its own consecutive invoice number sequence.
The invoice must clearly describe the deliverable, pricing basis, delivery period, VAT and any approved disbursements. The Collaboration Partner shall send the invoice to Gastroplan, which shall forward it to the Customer.
9.5
Gastroplan may combine its own invoice and one or more Partner invoices in the same email or document package and send the Customer a single consolidated payment statement.
The payment statement is not a VAT invoice and does not alter the identity of the supplier of the individual services.
9.6
The Collaboration Partner grants Gastroplan limited authority to receive the Customer’s payment of the Partner invoice with full discharging effect for the Customer.
The Collaboration Partner may not claim from the Customer an amount that the Customer can document having paid to Gastroplan in accordance with the payment statement.
9.7
Gastroplan shall deduct the fee agreed in writing under clause 5, plus VAT, and other due, documented claims before settling the net amount with the Collaboration Partner.
Gastroplan shall send a settlement statement showing the Customer’s payment, the Partner invoice, Gastroplan’s fee and VAT, any set-offs and the net amount.
9.8
Gastroplan shall settle the undisputed net amount no later than 5 business days after the Customer’s payment is finally available and the necessary settlement information has been provided.
Gastroplan does not guarantee the Customer’s payment and is not obliged to prepay the Collaboration Partner’s receivable.
9.9
In the event of partial payment, the amount shall be allocated in accordance with the Customer’s timely payment instructions and, failing such instructions, pro rata among the identified invoices that are due.
9.10
The Collaboration Partner is responsible for price, VAT, invoice details, credit notes, complaints and refunds relating to its direct deliverable.
Gastroplan shall be responsible only for its own documented processing and payment errors.
9.11
The Collaboration Partner shall bear refunds, chargebacks and associated third-party charges to the extent that they relate to the Collaboration Partner’s agreement, deliverable, errors, defects, delay or breach of law.
Gastroplan may set off such amounts against current or future settlements.
9.12
If the payment model requires a different authorisation structure or the use of a licensed payment service provider, Gastroplan may specify such a solution or temporarily require direct payment to the Collaboration Partner.
This shall not alter the Collaboration Partner’s obligation to pay Gastroplan’s fee.
10. Disbursements and costs
10.1
The Collaboration Partner may incur disbursements, purchases, travel expenses, third-party costs or other costs for Gastroplan’s account only if approved in writing in advance.
10.2
All approved disbursements must be documented by a valid receipt, invoice or other documentation suitable for accounting purposes.
10.3
Gastroplan may reject expenses without prior written approval, irrespective of whether the Collaboration Partner considers the expense appropriate or necessary.
11. Confidentiality
11.1
The Collaboration Partner must treat as confidential all non-public information concerning Gastroplan, Gastroplan’s customers, projects, prices, agreements, leads, methods, documents, concepts, recipes, calculations, suppliers, collaboration partners, internal processes and other business matters.
11.2
Confidential information may not be disclosed, used, copied or exploited for purposes other than performance of the specific agreement.
Any necessary storage of information must be secure and in accordance with applicable law.
11.3
Without Gastroplan’s prior written consent, the Collaboration Partner may not make any public reference to the collaboration, the Customer, the project or Gastroplan’s role, including on a website, social media, in case studies, sales presentations, the press, newsletters or pitch material.
11.4
The duty of confidentiality shall apply during the collaboration and for 5 years after the collaboration ends.
In respect of information that by its nature constitutes a trade secret, the duty of confidentiality shall apply for as long as the information has not lawfully entered the public domain.
12. Intellectual property rights and materials
12.1
All intellectual property rights, know-how, methods, concepts, templates, process descriptions, frameworks, presentations, calculation models, sales material, copy, recipes, manuals, training material and other materials made available by Gastroplan shall belong to Gastroplan or Gastroplan’s licensors.
12.2
The Collaboration Partner shall acquire only a limited, non-exclusive and non-transferable right to use Gastroplan’s materials to the extent necessary to perform the specific assignment.
12.3
Without Gastroplan’s prior written consent, the Collaboration Partner may not copy, reuse, resell, license, share, publish, adapt or otherwise exploit Gastroplan’s materials, methods or concepts.
12.4
Materials, documents, data, images, videos, copy, recipes, analyses, reports, presentations or other deliverables prepared by the Collaboration Partner specifically for Gastroplan or the Customer as part of the collaboration may not be reused, published or used for other customers without Gastroplan’s written consent.
12.5
Unless otherwise agreed in writing, the Collaboration Partner grants Gastroplan a perpetual, worldwide and fully paid-up right to use the deliverables prepared and paid for as part of the collaboration to the extent necessary for Gastroplan’s and the Customer’s use of the deliverable.
The Collaboration Partner shall retain the rights to its own pre-existing material and general know-how.
13. Customer contact and communication
13.1
The Collaboration Partner may have direct professional and practical contact with the Customer to the extent necessary for the agreed deliverable.
Gastroplan must be kept informed of material commercial communications, quotations, prices, changes, complaints, conflicts and extensions.
13.2
Quotations, direct prices, discounts, additional services and new collaboration proposals made to a Protected Customer must be registered and invoiced through Gastroplan in accordance with clauses 5 and 9.
Direct contact does not in itself constitute circumvention where the Collaboration Partner loyally discloses and settles Gastroplan’s fee.
13.3
The Collaboration Partner must loyally refer the Customer’s questions about Gastroplan’s services, prices, role, liability or further collaboration to Gastroplan.
14. Quality defects, delay and remedies
14.1
If the Collaboration Partner is a subcontractor to Gastroplan and the deliverable is defective, delayed, incomplete or does not comply with the agreement, Gastroplan may require remedy, redelivery, a price reduction, withholding, damages or termination for material breach in accordance with the general rules of Danish law.
14.2
For a direct Partner deliverable, the Customer must exercise its remedies for defects directly against the Collaboration Partner.
The Collaboration Partner must inform Gastroplan of material complaints without undue delay and remedy justified defects at no additional cost to the Customer.
14.3
The Collaboration Partner shall be liable for direct losses and reasonable administrative costs imposed on Gastroplan by acts or omissions of the Collaboration Partner giving rise to liability.
15. Liability and indemnification
15.1
The Collaboration Partner shall be responsible for its own acts, omissions, deliverables, advice, products, employees, subcontractors, errors, defects, delays and breaches of law.
15.2
The Collaboration Partner must indemnify and hold Gastroplan harmless against claims, losses, liabilities, fines, orders and reasonable costs arising from acts or omissions of the Collaboration Partner giving rise to liability, including defective delivery, incorrect advice, breaches of law, breaches of confidentiality, infringements of intellectual property rights, personal data breaches or product liability.
15.3
For a direct Partner deliverable, the Collaboration Partner shall be directly liable to the Customer for its deliverable.
Gastroplan shall be liable only for Gastroplan’s own documented errors in referral, coordination and payment administration.
The Collaboration Partner shall not be liable for indirect loss unless the loss is caused by gross negligence, wilful misconduct, breach of confidentiality, infringement of intellectual property rights, circumvention, a personal data breach or circumstances for which the Collaboration Partner is liable under mandatory law.
15.4
If the Collaboration Partner’s service is subject to a requirement for authorisation, certification, permission, insurance or a particular professional qualification, the Collaboration Partner is responsible for maintaining this throughout the collaboration.
16. Insurance
16.1
The Collaboration Partner must maintain relevant and customary insurance for its business and services, including public liability insurance, product liability insurance, professional indemnity insurance or other relevant insurance where this is customary or necessary for the service concerned.
16.2
Gastroplan may require evidence of insurance cover if the Collaboration Partner’s service involves material risk, customer access, physical work, food handling, advisory liability, technical delivery, personal data, product supply or other specific exposure.
17. Food safety, working environment and legislation
17.1
If the Collaboration Partner’s service relates to food, kitchen operations, ingredients, production, storage, serving, cleaning, food contact materials, allergens, hygiene, food safety self-monitoring or similar matters, the Collaboration Partner must comply with applicable food legislation, regulatory requirements, industry requirements and good professional practice.
17.2
The Collaboration Partner is responsible for ensuring that its own products, deliverables, information, labelling, ingredient lists, allergen information, traceability, shelf-life information and food-related recommendations are accurate and lawful.
17.3
If the Collaboration Partner performs physical work at the premises of Gastroplan, the Customer or a third party, the Collaboration Partner must comply with applicable working environment rules, safety regulations, site rules and lawful instructions at the location.
18. Personal data and GDPR
18.1
Each party must comply with applicable data protection legislation, including the General Data Protection Regulation and the Danish Data Protection Act.
18.2
The parties’ data protection roles shall be determined by the actual processing.
If the Collaboration Partner processes personal data solely on the documented instructions of Gastroplan or the Customer, the Collaboration Partner shall be the data processor. In that event, the processing shall be governed by the data processing provisions of these Terms and the specific assignment confirmation.
A separate document is not required unless specifically agreed or necessary due to the nature of the processing.
18.3
As data processor, the Collaboration Partner may only:
a) process personal data on documented instructions;
b) ensure that persons with access to the data are subject to confidentiality;
c) implement appropriate technical and organisational security measures;
d) use sub-processors in accordance with the agreed approval procedure;
e) assist with data subjects’ rights, personal data breaches, data protection impact assessments and enquiries from supervisory authorities;
f) delete or return the data when the assignment ends, unless the law requires retention; and
g) make the documentation necessary to verify compliance available.
18.4
The Collaboration Partner must inform Gastroplan without undue delay of actual or suspected personal data breaches, requests from data subjects and relevant enquiries from supervisory authorities.
18.5
The Collaboration Partner may not transfer personal data outside the EU/EEA without Gastroplan’s prior written approval and a valid transfer mechanism.
19. Competition and lawful conduct
19.1
The parties must comply with applicable competition law and may not enter into agreements, exchange information or coordinate conduct in a manner that unlawfully restricts competition.
19.2
The Collaboration Partner may not use the collaboration for unlawful price coordination, market sharing, customer allocation, restriction of supplies, misuse of confidential information or other unlawful anti-competitive conduct.
19.3
The customer protection and fee provisions must be interpreted as specific protection of Gastroplan’s documented introduction and right to a fee. They do not constitute a general prohibition against the Collaboration Partner competing or working for other customers.
20. Circumvention and contractual penalty
20.1
Direct contact with or delivery to a Protected Customer does not in itself constitute a breach.
However, intentional or grossly negligent concealment of agreements, deliverables, invoicing or payment with a view to evading Gastroplan’s fee shall constitute a material breach.
20.2
In the event of a breach of clause 20.1, the Collaboration Partner must pay the full fee evaded, with interest, and a contractual penalty of DKK 50,000 for each connected course of circumvention.
20.3
If the concealed revenue can be documented to exceed DKK 250,000 exclusive of VAT, the contractual penalty shall be DKK 100,000 for the connected course of circumvention, unless, in the specific circumstances, the amount must be regarded as manifestly unreasonable.
20.4
The contractual penalty has been agreed as predetermined compensation for the commercial damage, evidential difficulties and business disruption that Gastroplan may suffer as a result of circumvention.
20.5
The contractual penalty shall be set off against any claim for damages in respect of the same loss. Gastroplan may claim further damages if a greater loss is documented, but may not obtain double recovery for the same loss.
21. Breach and termination for material breach
21.1
Gastroplan may terminate the collaboration for material breach, in whole or in part, if the Collaboration Partner materially breaches its obligations.
Where a breach is capable of remedy, Gastroplan must first issue a written demand and allow a reasonable period for remedy.
21.2
Material breach shall include material delay, a materially defective deliverable, breach of confidentiality, circumvention of Gastroplan’s fee, concealed invoicing, failure to provide documentation, breaches of law, material conflicts of interest, personal data breaches or acts that materially damage Gastroplan’s reputation.
21.3
Upon cessation, the Collaboration Partner must return or delete confidential information, materials, access credentials, customer data, documents and other assets belonging to Gastroplan or the Customer, unless the law requires continued retention.
22. References and marketing
22.1
Without Gastroplan’s prior written consent, the Collaboration Partner may not use Gastroplan’s name, logo, customer projects, case studies, images, statements or other identifiers in marketing.
22.2
The Collaboration Partner may not state or advertise that it is a regular partner, official supplier, exclusive collaboration partner or representative of Gastroplan unless this has been approved in writing.
23. Force majeure
23.1
Neither party shall be liable for any failure or delay in performance caused by extraordinary circumstances beyond the party’s reasonable control which the party could not reasonably have foreseen, avoided or overcome.
The affected party must inform the other party without undue delay and mitigate the consequences.
23.2
Force majeure shall not release the Collaboration Partner from the obligation to protect confidential information, personal data, customer data, Gastroplan’s materials or other matters that, by their nature, must remain protected.
24. Governing law and jurisdiction
24.1
These Terms and every agreement between Gastroplan and the Collaboration Partner shall be governed by Danish law.
24.2
The parties must seek to resolve any dispute through good-faith negotiation.
24.3
If the dispute cannot be resolved by negotiation, it shall be determined by the Copenhagen City Court as the court of first instance, unless mandatory law provides otherwise.
25. Validity, versions and interpretation
25.1
If any provision of these Terms is held to be invalid or unenforceable, this shall not affect the validity of the remaining provisions.
25.2
To the greatest extent possible, the invalid or ineffective provision shall be replaced by a valid provision that most closely reflects its original commercial and legal purpose.
25.3
The version of the Terms sent to the Collaboration Partner or expressly incorporated into the specific agreement shall apply to the collaboration.
Publication of new Terms on Gastroplan’s website shall not amend agreements already entered into. Material amendments require the Collaboration Partner’s written acceptance.
26. Language and interpretation
26.1
These Terms are available in Danish and English. The English version is a translation of the Danish version. In the event of any discrepancy, inconsistency or uncertainty of interpretation, the Danish version shall prevail.