GENERAL TERMS AND CONDITIONS OF MEXMA FOOD B.V.
Klarenanstelerweg 2, 6468 EP Kerkrade, The Netherlands
1.1 These general terms and conditions – hereinafter referred to as the “general conditions” – govern any tender, offer or contract between Mexma Food B.V., - hereinafter referred to as “Mexma” – and any third party, hereinafter referred to as “the customer(s)”.
1.2 It is only possible to deviate from these general conditions if this is expressly agreed in writing, in which case the other provisions shall remain fully binding.
1.3 The application of any general terms and conditions of purchase or otherwise of the customer is hereby expressly excluded.
- Offers and entry into a contract
2.1 All offers are subject to contract unless the offer specifies a period for acceptance.
2.2 Offers are binding whilst stocks last and lapse as soon as the product being offered ceases to be available.
2.3 A contract is concluded between Mexma and a customer as soon as a written confirmation of order is sent by Mexma to the customer.
2.4 Prices, print finishes, etc. are subject to change and therefore do not bind Mexma. No rights can be established against Mexma on the basis of any claim made about the product in brochures or printed advertising.
3.1 All prices quoted in offers are ex works, expressed in euro and exclusive of VAT, unless the offer specifies otherwise.
3.2 Postage and packaging costs, storage costs, insurance premiums, taxes, import duties and other liabilities are not included in the sale price and are payable by the customer, unless the offer specifies otherwise.
3.3 If, following an offer or the conclusion of a contract, a factor that determines cost price undergoes significant change, Mexma is entitled to increase the agreed price accordingly, without this entitling the customer to terminate the contract or any part thereof unless the relevant increase in price exceeds 10%.
3.4 Price increases due to exchange rate fluctuations between the euro and other currencies shall only be passed on to the customer if the difference in exchange rate exceeds 3% of the rate on the date on which the confirmation of order was sent.
4.1 Payment shall be made in advance, unless expressly stated otherwise in the offer. All costs relating to the payment shall be borne by the customer.
4.2 Payment shall be made in full, with no discount or set-off.
4.3 Payments made by the customer shall first be applied to cover costs, then interest, and then the oldest debts, even if the customer has given other instructions for the use of such payment.
4.4 If payment is not made in time, the customer is automatically in breach. In such a case, Mexma shall charge the customer interest on the debt at the rate of 1.5% per month, or at the statutory rate if this is higher. 4.5 If Mexma considers it necessary to pass a debt not paid in time to a third party for collection, the costs of such a process are payable by the customer. Mexma may choose to charge the customer for either the costs actually incurred or a sum equal to 15% of the principal sum owed to Mexma, plus interest thereon for delayed payment, being not less than EUR 250.
- Delivery and delivery periods
5.1 Mexma will not deliver any goods until the full amount invoiced has been credited to the account of Mexma.
5.2 The delivery periods indicated by Mexma are approximate only and are not to be construed as deadlines unless expressly agreed otherwise.
5.3 No failure to deliver within the delivery period for whatever reason shall incur Mexma in any liability to compensate the customer for any loss suffered by the customer or any third party, unless such breach is the result of a deliberate act or gross negligence on the part of Mexma or its management.
5.4 Mexma is entitled to make part-delivery. Each delivery is deemed to have a separate value and Mexma is entitled to invoice for each separate part. In such a case, payment should be made in accordance with the provisions of Article 4.1 in conjunction with Article 5.1 of these general conditions.
6.1 Mexma shall determine the method of transport. Transport costs are payable by the customer, unless expressly agreed otherwise.
6.2 The delivery address shall be the address of the customer notified to Mexma in writing when the order was made. If the customer subsequently changes the delivery address, the transport shall be at the risk of the customer and it shall be liable for any extra charges.
7.1 Packaging, such as crates and pallets, are charged separately to the customer, unless the same packaging is returned by the customer to Mexma undamaged at the time of delivery.
- Acceptance and complaints
8.1 The quantity of goods delivered is deemed to be correct unless the customer immediately upon delivery records that there are missing items on the relevant receipt. A detailed note confirming the said missing items must then be sent to Mexma within three working days following delivery.
8.2 Complaints regarding the quality of products and/or changes of specifications, such as damaged packaging, an exceeded sell-by date, errors in printing work or otherwise, should be made in writing and received by Mexma no later than three working days following receipt, specifying the article and the nature of the complaint.
8.3 The customer must notify Mexma in writing of any complaints about invoices within three working days of receipt.
8.4 In the event of a complaint, the customer must enable Mexma to inspect the products that are the subject of complaint in their unopened and unused state at the delivery address, failing which the right to complain is lost. A complaint does not entitle the customer to suspend any obligation owed to Mexma, unless the products delivered completely fail to comply with the terms of the contract. The customer is not entitled to compensation.
8.5 After the end of the time limits specified in sections 1 to 3 of this article, the customer is deemed to have approved of the goods supplied and/or invoices issued.
8.6 A complaint does not relieve the customer from its obligation to purchase supplies yet to be made.
8.7 If a complaint about delivery is justified and the customer has complied with its obligations under Articles 9 and 10 of these general conditions, Mexma has the option either to replace the product in question or to refund the amount invoiced.
- Additional obligations upon the customer
9.1 The products supplied are chilled, unchilled, and frozen food products. The customer must comply strictly with storage guidelines, failing which any claim against Mexma will lapse.
9.2 Chilled products must be stored at all times and in all circumstances in chilled storage areas and transported at a maximum temperature of 7°C. Frozen products must be stored at all times and in all circumstances in freezer rooms and transported at a temperature no warmer than -15°C.
- Products with a limited use-by date
10.1 The products supplied have a limited use-by date. Mexma is not liable to the customer if the products are consumed, used or sold to any third party after the use-by date specified on the packaging.
10.2 The customer indemnifies Mexma against any third-party claim arising from the use, sale or consumption of a product after its use-by date.
11.1 Mexma is not liable for any loss suffered by the customer, whether direct or indirect loss, or business loss of any nature and howsoever described, except in the case of a deliberate act or gross negligence on the part of Mexma or its management, or in the case of product liability as prescribed by Book 6 Article 185 et seq. of the Dutch Civil Code.
11.2 There shall be no liability on the part of Mexma if the defects to the goods delivered are the consequence of careless use or use that does not comply with the instructions and/or regulations supplied by Mexma or set out in the accompanying documentation, including, but not limited to, those matters referred to in Articles 9 and 10 of these general conditions, or if the goods have been packed in different packaging, or have been supplied or sold on by the customer in a condition different than their original condition.
11.3 If Mexma is deemed liable for any loss suffered by the customer, such liability shall be restricted to twice the amount invoiced in respect of the transaction, or such part of the transaction to which liability relates, up to a maximum of EUR 15,000.
- Force Majeure
12.1 The occurrence of circumstances of such a nature that Mexma cannot reasonably be expected to comply (further) with the contract is deemed to be force majeure. Such circumstances include a breakdown in machinery or production, transport problems and strikes, a lack of goods or services needed to comply with the contract and failure by the suppliers of Mexma to supply correctly and on time.
12.2 For the duration of the force majeure, Mexma may suspend its contractual obligations. If this period continues for longer than two months, then Mexma is entitled to terminate the contract without incurring any liability to pay compensation to the customer.
- Retention of title
13.1 All products supplied by Mexma to the customer remained the property of Mexma until the customer has complied with all obligations under any contracts with Mexma, including the obligation to pay any collection costs or interest.
13.2 Products supplied subject to retention of title may not be sold on, pledged or in any other way encumbered.
- Termination of the contract
14.1 Mexma is entitled to unilaterally terminate any current contract with the customer without the need for a court order and without being liable to pay any compensation to the customer, if:i. The customer has failed to comply on time and properly with any obligation under a contract with Mexma;ii. The customer is declared insolvent or is subject to a debt rescheduling arrangement, winds up its business or transfers its business to a third party.
14.2 The provisions of section 1 of this article do not affect the right of Mexma to claim compensation for the full amount of its loss.
15.1 All contracts to which Mexma is a party are governed by Dutch law. The scope of the provisions of the Vienna Sales Convention is excluded.
15.2 Any dispute between Mexma and the customer shall be brought before the Court of Maastricht or, if Mexma so chooses, before such court with jurisdiction according to the usual rules regarding court jurisdiction.
- Language and filing
16.1 These general conditions have been drawn up in various languages. The interpretation of the terms hereof is dictated by the Dutch version.
16.2 These general conditions were filed on xx-xx-2010 with the court registry of the Court of Maastricht under file reference xxxxx.