GENERAL TERMS AND CONDITIONS
General sales and delivery conditions of:
Menitex – Worldwide food export
hereinafter to be referred to as: seller
Article 1 General
1. The stipulations of the present terms and conditions shall apply to each and every offer and agreement between seller and buyer. The buyer’s purchase conditions are explicitly rejected.
2. The present terms and conditions shall also apply to all agreements between seller and buyer, of which the execution calls for the services of third parties.
3. If one or more stipulations in the present terms and conditions should be null and void or declared null and void, then the other stipulations of the present terms and conditions shall remain fully applicable.
Article 2 Offers
1. All offers shall be free of obligation, unless officially issued as a pro-forma invoice.
2. Official offers are only being made by issuance of a stamped and signed pro-forma invoice on letterhead paper and are valid for a period of seven days, unless indicated otherwise. Seller shall only be bound by the offer if the acceptance thereof is confirmed by the buyer by effecting the full payment before the stated expiry date on the pro-forma invoice.
3. Should the full payment come in after the stated expiry date, seller will confirm its reception and informs buyer if the offer can still be accepted or not.
4. The prices stated on the pro-forma invoice do not include costs and expenses at destination, such as, but not limited to, VAT, import duties, clearing cost and/or other government levies, demurrage, local administration cost, etc.
5. Previous offers and conditions shall not apply automatically to future orders.
6. Payments received by seller will never be refunded.
7. Seller is allowed to charge on price increases if changes in price have occurred between the moment the offer was made and the moment of production / delivery with respect to, e.g., exchange rates, salaries and wages, raw material, semi-finished products or packaging material.
Article 3 Samples and Documentation
1. If a sample or model has been given to buyer, then the assumption is that such has been given by way of indication only, unless parties agree explicitly that the product to be delivered shall correspond exactly with it.
2. Seller has the right to execute product modifications / changes without giving notice in advance to buyer.
3. Only the documents as stated on the pro-forma invoice will be included with the delivery.
4. In case additional documentation is required, the buyer must expressly and precisely state the additional required documentation before making a transfer.
5. Only when confirmed on the pro-forma invoice, seller will support the additionally requested documentation.
6. Should buyer apply for additional documentation after making a transfer, the request will not be honored.
Article 4 Delivery
1. Delivery will take place on the basis of the incoterms as stated on the pro-forma invoice. In case of CFR conditions, buyer is responsible for the freight insurance.
2. The risk of loss of, or damage to the goods being subject of the agreement, shall be transferred to buyer at the moment said goods are loaded.
3. Buyer shall be held to take delivery of the goods immediately after arrival of the vessel at the port of destination. Empty container(s) shall be returned to the port by buyer immediately after unloading and always remain property of the shipping line.
4. If the buyer takes the goods from the port later than the number of free days as stated on the Bill of Lading, buyer is responsible to pay demurrage cost to the shipping line.
5. If the buyer has not collected the goods from the port 7 days after the applicable number of free days as stated on the Bill of Lading, seller, at its option, shall be entitled either to store the goods at the cost and risk of the buyer, or sell the goods to a third party, in which case buyer shall be under obligation to indemnify seller for storage costs and any loss that may arise as a result of such resale.
6. For the execution of the delivery, seller requires correct data to be given by the buyer which will be stated on the Bill of Lading. Buyer is responsible for the delivery of correct data.
7. If seller has given a term of delivery, it shall only be indicative. A given term of delivery shall therefore not to be construed as a fatal date.
Article 5 Complaints and Liability
1. Any complaint about the condition / quality of the delivered goods shall be made within 5 days after arrival of the vessel at the port of destination and must be substantiated with comprehensive factual information, analysis, photo(s) and video reporting.
If no complaint is received within before stated period, the buyer shall be deemed to have approved the goods, and unconditionally accepted.
2. The under 5.1 stated information and report, shall be made and issued by an independent and accredited inspection services company and made in English language.
Once received, seller has the right to appoint another inspection services company for verification and to gather (additional) information. Meanwhile, the buyer shall detain and keep the goods pertaining to any claim at sellers disposal at a designated place, and safeguard them in an appropriate way.
3. In case seller confirms delivered goods are defective, seller's liability vis à vis the buyer shall be limited to the arrangements made in the present terms and conditions.
4. If seller is liable for direct damage, then said liability shall be limited to a maximum of the amount stated on the commercial invoice of the shipment and specific container involved. Direct damage shall be understood to be exclusively the reasonable costs incurred to prevent or limit damage, in so far buyer demonstrates that said costs have led to the limitation of direct damage as meant in the present terms and conditions. Buyer is obliged to limit damage at all times.
5. Seller shall never be liable for indirect damage, including consequential damage, loss of profit, lost savings and damage due to business stagnation. Buyer shall guarantee seller against any third party claims.
6. If a complaint is caused outside the sphere of influence of seller, for example by an external (packaging) supplier, seller will forward the complaint to this supplier, after which the complaint will be handled directly between this supplier and the buyer.
7. Seller's liability shall at all times be limited to a maximum equalling the amount of the payment to be made by seller's insurer in the occurring event.
8. Seller cannot be held responsible for any complaint / damage caused by transportation, shipment or (inappropriate) storage of the goods.
Article 6 Force Majeure
1. Seller shall not be held to fulfil any obligation if hindered to do so due to a circumstance through no fault of seller and which cannot be attributed to seller by virtue of law, a legal action or generally accepted practice.
2. In addition to the provisions of the law and the judge-made law in this respect, force majeure shall in the present terms and conditions furthermore be understood to be any external circumstance, be it envisaged or not, on which seller cannot have any influence but which prevents seller from fulfilling its obligations. Industrial action at seller's company or its suppliers shall also be understood to be a circumstance of force majeure.
3. Seller shall also be entitled to invoke force majeure if the circumstance rendering (further) fulfilment of the obligation(s) impossible, commences after the point in time on which seller should have fulfilled its obligation.
4. Throughout the duration of the circumstances of force majeure, seller shall be entitled to suspend the fulfilment of its obligations. If this period lasts for more than three months, seller shall be entitled to dissolve the agreement without any obligation to pay the buyer damage.
Article 7 Intellectual Property and Copyrights
1. Without prejudice to the other stipulations of the present terms and conditions, seller shall reserve the rights and authorities to which seller is entitled under the Copyright Act.
2. All Intellectual Property of the seller, such as, but not limited to: brands, designs, drawings, films, software and other material or (electronic) files, produced and / or delivered by the seller within the framework of the agreement, shall explicitly remain seller's property, irrespective of the fact whether they have been handed over to the buyer.
3. All Intellectual Property of the seller, such as, but not limited to: brands, documents, (elements of) designs, drawings, films, software, (electronic) files, provided by seller, shall be destined to be used by buyer exclusively and must not be reproduced, made public or brought to the notice of third parties by buyer.
4. Reproduction of brands / products, or production of brands / products which do have a significant similarity to the brands / products of which the Intellectual Property belongs to seller, by buyer or by third parties on buyers instruction / initiative is strictly prohibited. In case of any violation, a penalty of ten times the average annual turnover will be due and payable by buyer immediately.
Article 8 Secrecy
1. Both parties shall be bound to secrecy of all confidential information they have received within the scope of their agreement from each other or from another source. Information shall be considered to be confidential if the other party has indicated so or if the confidential character results from the nature of the information.
2. If a statutory provision or a judicial decision compels seller to convey confidential information to third parties designated by law or by the court and seller cannot for that purpose invoke a legal right to refuse to give evidence or such a right acknowledged or allowed by the competent court, seller shall not be held to pay damages or compensation and the opposite party shall not be entitled to demand the dissolution of the agreement on the ground of any damage resulting from said circumstance.
Article 9 Applicable Law
1. Dutch law shall apply to each and every agreement between seller and buyer. Any other (national) law, or (purchase) conditions are explicitly excluded.
2. The Treaty of Vienna (CISG) is explicitly excluded.
3. The Court of Breda has the exclusive jurisdiction. All proceedings shall be settled by the Court of Breda, The Netherlands.
Article 10 Interpretation and location of these Terms and Conditions
1. The Dutch version of these terms and conditions prevails at all time in case of disputes with regard to the interpretation and purpose of these terms and conditions.
2. The present terms and conditions have been filed at the office of The Netherlands Chamber of Commerce.
3. The most recently filed version shall always apply.