General terms and conditions of sale and delivery
General terms and conditions of sale and supply of the private limited company Menken Salades & Sauzen B.V. (Ch. of Comm.: 28067245), Menken Vleeswarensnijlijn B.V. (Ch. of Comm.: 28080791) and Menken Vleeswarenproduktie B.V. (Ch. of Comm.: 34183941).
Article 1 Definitions
Menken: one or more of the private limited companies referred to above.
Purchaser: the party with which Menken has concluded an agreement or to which Menken has offered or delivered products.
Products: the goods that are offered or delivered by Menken.
Order: each assignment provided by the Purchaser to Menken for the offer or delivery of products.
Agreement: each agreement that comes into effect between Menken and the Purchaser, as well as each amendment thereof or addendum thereto.
Article 2 Applicability
2.1 These terms and conditions apply to all offers and all agreements between Menken and the Purchaser to which Menken has stated that these terms and conditions apply, and insofar as these terms and conditions are not expressly derogated from by parties.
2.2 Any terms and conditions of the Purchaser are expressly rejected by Menken.
2.3 The declaration of voidness and/or the voidness of these terms and conditions will not affect the validity of the other provisions of these terms and conditions. Null and void or voided provisions will be converted into valid provisions, whereby the objective and effect of the original provisions will be observed as much as possible.
Article 3 Offers/tenders
3.1 Offers and tenders made by Menken are without obligation, unless expressly stated otherwise.
3.2 An agreement will exclusively come into effect by means of confirmation in writing by Menken of an order placed, or by confirmation in writing from the Purchaser of an offer issued by Menken.
3.3 Menken will be entitled to refuse orders or as the case may be to set out conditions to the delivery of products.
3.4 Menken will not be obliged to fulfil an offer and/or agreement at the stated price if this price is based on a printing and/or clerical error.
Article 4 Prices
4.1 All prices stated by Menken are - unless represented otherwise - excluding VAT and other duties imposed by authorities.
4.2 When Menken agrees to a specific price Menken nevertheless will be entitled to increase this price if cost price increasing factors, including labour and production costs, give cause for this.
4.3 If Menken, within three months after the concluding of the agreement, wants to make use of the entitlement referred to under point 4.2 the Purchaser will be entitled to terminate the agreement.
4.4 Menken will always be entitled to charge on the waste collection levy or waste collection payments charged to it by authorities (with regard to the products delivered or to be delivered to the Purchaser) to the Purchaser.
Article 5 Quality requirements
5.1 Menken supplies products that meet the highest quality requirements and all legal standards. Our products are manufactured in accordance with the HACCP rules and the standards set by the IFS, by whom we have also been certified.
Article 6 VAT registration number
6.1 The Purchaser is obliged to provide his/her correct VAT registration number to Menken and to immediately report any changes thereto.
6.2 If the Purchaser does not fulfil this obligation the purchase price will be increased automatically with the VAT and other amounts insofar as Menken might owe these as a result of this failure to fulfil.
6.3 Without prejudice to the other rights accruing to it, Menken has the right to suspend its deliveries to the Purchaser for as long as the Purchaser has not fulfilled his/her obligations as referred to in article 5.1 and 5.2.
Article 7 Provision of security
7.1 The Purchaser is obliged on first request from Menken to provide sufficient security for the fulfilment of his/her existing obligations toward Menken.
7.2 The Purchaser is furthermore obliged on first request to establish for the benefit of Menken a right of pledge as referred to in Section 239 Book 3 of the Civil Code on the claims that the Purchaser has against third parties due to the products sold by the Purchaser to third parties.
Article 8 Delivery/delivery period
8.1 The delivery of products will take place free domicile, unless otherwise agreed in writing.
8.2 The delivery address must be properly accessible. The Purchaser must ensure sufficient loading and unloading facilities at the delivery address. The Purchaser must furthermore do everything possible to ensure that commencement can be made immediately of the unloading of the products to be delivered. Menken will always be entitled to set out further specific logistical conditions.
8.3 If the Purchaser does not, or not in a timely manner, take delivery of the products the Purchaser will be in default with immediate effect without the requirement of any notice of default. In that event Menken will be entitled to store the products at the expense and risk of the Purchaser or to sell the products to a third party. In that event the Purchaser must not only pay to Menken the purchase price but also all additional costs.
8.4 Menken will be entitled to deliver the orders placed by the Purchaser in parts. Menken will be entitled to invoice separately for each part of such an order.
8.5 The delivery periods stated by Menken will always be regarded as an estimate and will never apply as a final deadline, unless expressly agreed otherwise in writing. In the event of late delivery the Purchaser must give Menken notice of default subject to stating a reasonable period during which the delivery must still take place.
Article 9 Complaints
9.1 The Purchaser must inspect (have inspected) the delivered products on delivery - or as soon as possible afterwards - for the quantity and quality.
9.2 The Purchaser is obliged to report (have reported) complaints and defects immediately on delivery in the documents to be signed on receipt. Defects must be reported to Menken in any event no later than within 24 hours after discovery of a defect, subject to stating precisely the nature and the basis of the complaint(s).
9.3 The provisions of this article apply in full if the goods delivered by Menken for the benefit of the Purchaser are delivered to a third party. The Purchaser can therefore never argue against Menken that he/she has not inspected the delivered goods because there were stored elsewhere at the location of a third party.
9.4 In the event of the absence of a complaint made in a timely manner, the Purchaser will be regarded as having approved the delivery, or as the case may be the invoice.
9.5 Submitting a complaint will not release the Purchaser from his/her payment obligations toward Menken.
9.6 If the Purchaser complains in a timely manner and on justifiable grounds, Menken will (at its choice) ensure the replacement of the defective products, or as the case may be repay to the Purchaser the amount already paid for the defective products, or credit the Purchaser for the amount charged for these defective products.
9.7 The Purchaser is only permitted to return products to Menken with prior permission in writing from Menken.
9.8 Every right of complaint lapses in case of the changing of the nature, the composition or as the case may be the packaging of the product by the Purchaser or third parties.
Article 10 Payment
10.1 The amounts stated in an invoice from Menken must be transferred within the period stated in this invoice to an account stated by Menken. If no payment term is stated in the invoice a payment term of 14 days after the invoice date will apply.
10.2 All amounts invoiced to the Purchaser must be paid by the Purchaser without reduction, suspension or setoff.
10.3 The Purchaser will be in default by operation of law if this payment does not take place as agreed. The Purchaser will from that time owe default interest over the due and payable amount of 1.5% per month or part of a month from the occurrence of the default until the day of payment in full.
10.4 All judicial and extrajudicial (collection) costs actually incurred or to be incurred on the part of Menken will be in that event at the expense of the Purchaser. The extrajudicial collection costs amount to at least 15% of the invoice amount, with a minimum of € 700, which amount is subject to judicial mitigation.
10.5 The payments made by the Purchaser first of all serve for the payment of the interest and costs owed and thereupon for the payment of invoices that have been outstanding the longest, also if the Purchaser states otherwise.
10.6 Setoff of invoices is not permitted without confirmation in writing from Menken.
Article 11 Retention of title
11.1 The products delivered by Menken remain the property of Menken until the Purchaser has fulfilled all his/her payment obligations toward Menken, entered into on whatsoever basis and whatsoever time, regardless of whether the obligations were already in existence at the time of the entering into of the agreement, or as the case may be have arisen after the entering into of the agreement.
11.2 The Purchaser nevertheless has the right to sell or process the products in the context of his/her usual business operations, unless Menken at any time makes it apparent in writing that the Purchaser must immediately make the products available to Menken.
11.3 The Purchaser is obliged to provide cooperation to all measures that Menken chooses to take for the protection of its ownership rights with regard to the goods delivered by Menken.
Article 12 Recall
12.1 If the Purchaser becomes aware of a defect of a product delivered by Menken, the Purchaser must immediately provide Menken with all important information related to this.
12.2 The Purchaser must provide cooperation to all measures deemed necessary by Menken, including a recall of products instigated by Menken, also in the event that the Purchaser has provided the products to third parties.
12.3 If the Purchaser, after having acquired permission for this purpose from Menken, proceeds with the dumping of the products delivered by Menken, the Purchaser must provide Menken with the evidence of dumping within 24 hours after the dumping.
12.4 The Purchaser will keep all information confidential with regard to a defect of a product delivered by Menken, as well as all information with regard to the measures to take or be taken related to this, and will not in any form whatsoever disclose or pass on this information to third parties, unless Menken has designated this information as not confidential.
Article 13 Liability
13.1 The liability on the part of Menken is always, with the exception of mandatory statutory provisions with regard to product liability and with the exception of intention or gross negligence on the part of managerial officers/employees of Menken, limited to the amount that is paid in the context of the insurance taken out by Menken in the event concerned. If and insofar as for any reason whatsoever no payment might take place pursuant to this insurance, any liability on the part of Menken will be limited to the net invoice amount of the products not delivered, delivered late, or as the case may be delivered defective products, up to a maximum amount of € 25,000.
13.2 Menken will never be liable for indirect damage on the part of the Purchaser and/or third parties, including consequential loss, lost sales and profit and immaterial damage, related to or ensuing from the agreement or the use or consumption of the products.
13.3 Menken will never be liable for direct or indirect damage on the part of the Purchaser and/or third parties related to or ensuing from the symbol as referred to in the International Article Numbering Association (EAN) scheme. The Purchaser indemnifies Menken and its employees for all damage as a result of claims by third parties which are directly or indirectly related to the products delivered by Menken, or otherwise related to the agreement(s) concluded between the Purchaser and Menken.
Article 14 Force majeure
14.1 If Menken due to force majeure is incapable of fulfilling its obligations to deliver, Menken will be entitled to postpone the delivery of the products until the time when the force majeure situation has ended.
14.2 If the period during which the fulfilment of the obligations by Menken is not possible due to force majeure lasts longer than one month, both parties will be entitled to terminate the agreement wholly or in part without in that event an obligation of compensation arising.
14.3 Force majeure is taken to mean a failure in the performance, which cannot be attributed to Menken, all this as referred to in Section 75 Book 6 of the Civil Code. Parties will in any event take force majeure to mean: strike actions, factory sit-ins, fire, weather conditions, crop failure, sickness, transport problems, government measures including import and export measures, breakdown in the supply or provision of raw materials, energy or business requirements, breach of contract on the part of suppliers and contract partners of Menken as well as defects or damage of machines.
Article 15 Resale
15.1 The Purchaser will be entitled to resell and supply the products delivered by Menken to a third party, if:
a: these products are supplied in the original packaging intended for the end user;
b: The Purchaser must agree with his/her customer, insofar as this customer acts in the exercise of a profession or business, by means of a perpetual clause, that the obligations referred to in this article will also be binding on this customer and, furthermore, that in the event of possible further resale/delivery, these obligations must once again be set out or agreed.
Article 16 Termination
16.1 If the Purchaser does not, not in a timely manner, or not properly fulfil his/her obligations, is declared insolvent, applies for (provisional) moratorium, proceeds with the liquidation of his/her business, as well as when attachment is levied against the Purchaser, Menken will have the right to suspend the performance of the agreement, or to terminate the agreement, wholly or in part, without prior notice of default by means of a statement in writing, all this at its choice and always with reservation of any right accruing to it to compensation of costs and damage.
16.2 In the event of partial termination of the agreement by Menken the Purchaser cannot make claim to reversing of the goods and services already executed by Menken and the Purchaser will be obliged to payment of the goods and services already executed until that time by Menken.
16.3 In the event of insolvency or moratorium the Purchaser must immediately inform Menken regarding this and must show the agreement promptly to a bailiff, receiver or administrator and thereby point out the ownership rights of Menken.
Article 17 Setoff clause
Menken is always entitled to set off that which it can claim from the Purchaser, whether or not due and payable or subject to the terms and conditions of the Purchaser, against the counterclaims, whether or not due and payable, of the Purchaser against Menken.
Article 18 Packaging
18.1 Menken makes use of packaging in the context of the delivery of its goods. Packaging includes - inter alia - pallets and crates. If Menken charges a returnable deposit, packaging will be accepted on return at the invoice price applicable at the time of the return.
18.2 The packaging that the Purchaser wants to deliver must be clean and fresh to such an extent that it is suitable for use for fresh goods without further actions on the part of Menken.
18.3 If the return of the packaging takes place via the personal means of transport of Menken, the Purchaser must ensure that the packaging has been sorted and ready for transport.
18.4 Packaging that has not been delivered by Menken will only be accepted on return if and insofar as Menken trades the products concerned in its own product range and the packaging is in a good condition.
Article 19 Applicable law and choice of forum
19.1 Dutch law exclusively applies to all offers and agreements, which these terms and conditions apply to.
19.2 The provisions of the United Nations Convention on Contracts for the International Sale of Goods (CISG, Vienna Sales Convention 11 April 1980) do not apply.
19.3 All disputes related to the legal relationship between Menken and a Purchaser will be exclusively submitted to the court in the place of business of Menken, unless mandatory legal provisions prescribe otherwise.
