Terms & Conditions
GENERAL TERMS AND CONDITIONS OF SALE AND DELIVERY OF MESSEM
1.1 These general terms and conditions (the “Terms and Conditions”) are applied by Messem International B.V., as well as by all enterprises associated to Messem International B.V., all hereinafter referred to as “Messem”.
1.2 The Terms and Conditions apply to all offers of and all agreements with Messem.
1.3 The applicability of any general terms and conditions of a co-contracting party of Messem (the “Customer”) is hereby explicitly rejected.
1.4 Deviation from the Terms and Conditions is only possible by written agreement between Messem and the Customer.
1.5 In the event of a conflict between the Terms and Conditions and any other specific provision, such specific provision prevails over the Terms and Conditions, provided the Customer and Messem have agreed in writing that such specific provision shall prevail.
1.6 The ICC Incoterms 2010 apply to the delivery of products by Messem to the Customer.
Article 2 Offers
2.1 Any offers and quotations submitted by Messem are not binding for Messem, unless otherwise agreed in writing between Messem and the Customer.
2.2 A binding agreement shall be concluded between the Customer and Messem by written confirmation of the order by Messem.
2.3 Messem reserves the right to require security from the Customer before executing a binding agreement.
Article 3 Price
3.1 Unless otherwise agreed in writing, the price is based on the FCA – Incoterm.
3.2 Any costs related to the introduction and/or increase of import duties, VAT and other taxes and levies on the product, the requisite raw and/or ancillary materials, the delivery or any other increase of costs occurred after the conclusion of the agreement between Messem and the Customer, shall be passed on by Messem to the Customer in full and all such costs shall be fully borne by the Customer.
Article 4 Payment
4.1 The Customer is obliged to pay any amounts due within the period indicated in Messem’s invoice, net and in cash and without the right to any discount or set-off.
4.2 If no period is indicated in the invoice, the Customer is obliged to pay any amounts due to Messem within 30 days after the invoice date.
4.3 As long as previous deliveries have not been paid in full by the Customer, Messem is, at its discretion, entitled to (i) require payment in advance by the Customer and / or (ii) to suspend further delivery to the Customer. The Customer is at all times obliged to provide all security deemed necessary by Messem for the payment of the Customer’s debts to Messem, upon Messem’s first request to that effect.
4.4 Payment is deemed to be made when Messem can dispose of the money so received from the Customer.
4.5 If Messem has not received payment within the period given in paragraph 1 or 2, as the case may be, of this Article, Messem shall charge interest on the basis of a monthly rate of 1 % default interest, without any notification of default being required. The interest shall be due as of the first day after the expiry of the period referred to in paragraph 1 or 2, as the case may be, of this Article.
4.6 All costs incurred by Messem in collecting payments due by the Customer, including but not limited to postage, telephone and internal processing fees, as well as all court costs and costs for (extra) judicial legal assistance, shall be for the account of the Customer.
Article 5 Delivery
5.1 All times of delivery agreed upon between Messem and the Customer are estimated times of delivery only and are not binding upon Messem.
5.2 If Messem exceeds the delivery time, by whatever cause, the Customer shall not be entitled to (i) dissolve the agreement entered into between Messem and the Customer, or (ii) to demand any damages from Messem, unless the Customer proves intent or gross negligence on the part of Messem.
Article 6 Retention of title
6.1 All products delivered by or on behalf of Messem to the Customer remain the ownership of Messem until the Customer has performed all its outstanding obligations towards Messem regarding previous and subsequent deliveries by Messem to the Customer. Until the Customer has fully and duly performed all its obligations due to Messem, Messem is the owner of all products delivered by it to the Customer and the Customer holds such products for Messem.
6.2 All products held by the Customer which have been delivered by or on behalf of Messem are always deemed to be those listed on the outstanding invoices, at least to the extent that the quantity of products held by the Customer does not exceed the quantities listed on the outstanding invoices as regards type and composition.
6.3 If a situation occurs as referred to in Article 12.1, Messem is at all times authorised to repossess products without prior notice to the Customer. In the event a situation as referred to in Article 12.1 occurs, the Customer hereby grants authorisation to Messem to repossess any products and to perform any actions to that effect, including the right to (i) enter the location where the products are stored and (ii) remove the products.
Article 7 Inspection and complaints
7.1 The Customer is obliged to adequately inspect the goods delivered upon receipt.
7.2 Complaints regarding (i) the quantity of products delivered and (ii) visible defects of the products must be reported in writing to Messem within 24 hours upon delivery of the products. Complaints in that regard will not be dealt with if the documents evidencing receipt have been signed by the Customer without a specification of the complaint.
7.3 Complaints with regard to non – visible defects existing at the time of delivery of the products must be submitted to Messem 24 hours after discovery, accompanied with (i) a specification of the defect and (ii) (a) the manner and (b) the time the Customer discovered such defect.
Messem deals with complaints provided (i) the complaint has been made within the recommended shelf life of the product and (ii) the product has been stored in the manner prescribed by Messem.
7.4 Complaints submitted after the periods referred to in paragraphs 2 and 3, as the case may be, of this Article will not be dealt with by Messem.
7.5 Complaints will be dealt with, on the condition that after the delivery of the products, (i) the products (a) have not been damaged in part or in full, (b) have not been repacked, and (ii) the products’ nature and/or composition has not been changed.
Article 8 Return consignments
8.1 Return consignments are only permitted (i) with the prior written approval of Messem, or (ii) if such return consignments are performed by or on the instruction of Messem.
8.2 Unless otherwise agreed in writing, return consignments are effected for the account and risk of the Customer. If Messem deems the complaint founded, Messem shall reimburse the Customer all reasonable costs of the return consignment.
Article 9 Liability
9.1 The liability of Messem is at all times limited to direct damage to goods attributable to employees of Messem or attributable to third parties engaged by Messem. Messem cannot be held liable for any damage other than as referred to in the previous sentence. Damage for which Messem cannot be held liable is for example, but not limited to (i) damage which is not attributable to any of its employees or to any third parties engaged by it, (ii) damage resulting from injury or death of persons, (iii) consequential damage or loss of profits.
9.2 The liability of Messem is further limited to the amount for which Messem has actual insurance coverage with regard to the damage occurring. If, as the case arises, it turns out that for whatever reason there is no insurance coverage, the liability of Messem shall be limited to the amount of the invoice which Messem has actually received with respect to the products in relation to which the damage has occurred.
9.3 Each claim of the Customer for damages will lapse one year after the start of the day, following the day on which the Customer has become known with the damages and with Messem as liable party.
9.4 The Customer shall indemnify Messem against claims of third parties to compensate damage for which Messem is not or cannot be held liable towards the Customer on the basis of the provisions in the previous paragraphs of this Article.
Article 10 Force majeure
10.1 Force majeure entitles Messem, after having notified the Customer in writing, to suspend performance, without the Customer being entitled to demand damages.
10.2 Force majeure includes (i) every event that cannot be attributed to Messem, as a result of which performance of an obligation cannot reasonably be required of Messem, as well as to the extent not covered by the previous sentence (ii) disruptions or interruptions of operations of any nature whatsoever, regardless of the cause, (iii) delayed or late delivery by one or more suppliers, (iv) impediments to transport of any type or cause whatsoever, as a result of which the transport to Messem and/or from Messem to the Customer is hampered or impeded, (v) insufficient harvest and bad harvest, (vi) strikes, (vii) and fire.
10.3 Insufficient harvest or bad harvest means the partial or full failure of the harvest of the raw and ancillary materials required by Messem as a result of which Messem cannot dispose of the raw and ancillary materials required by Messem, cannot do so in good time or can only do so under conditions objectionable to Messem.
10.4 If the delivery of products by Messem is delayed more than three months as a result of force majeure, both the Customer and Messem shall be authorised to dissolve the agreement.
10.5 If the force majeure occurs when the agreement has already been executed in part and if the remaining delivery is delayed more than three months, the Customer shall retain that portion of the products delivered and pay the purchase price due with respect to the products delivered by Messem.
Article 11 Termination
11.1 Without prejudice to its entitlement to performance of the agreement, Messem shall be authorised, without any compensation being due to the Customer, to (i) terminate the agreement with the Customer in full or in part without judicial intervention, and/or (ii) demand damages, and / or (iii) retrieve the goods already delivered, and / or (iv) suspend the delivery to the Customer, in the event (a) the Customer is fully or partly in breach with respect to the performance of its obligations vis-à-vis Messem, (b) the Customer ceases operations, (c) the Customer applies for suspension of payments, (d) suspension of payments is requested with regard to the Customer, (e) the Customer is granted suspension of payments, (f) the customer applies for bankruptcy, (g) bankruptcy is applied for with regard to the Customer, (h) the Customer is declared bankrupt, (i) the Customer offers a settlement to its creditors, or (j) if other, comparable, circumstances occur with respect to the Customer.
11.2 In the case of termination of the agreement on the basis of one or more of the grounds listed in the previous paragraph, every claim which Messem has against the Customer shall become immediately due and payable.
Article 12 Confidentiality
12.1 The Customer shall keep confidential (i) the existence, nature and substance of the agreement between Messem and the Customer and (ii) any confidential information of Messem and shall not disclose or use any such information, without the prior written permission of Messem or unless the Customer is required to disclose such confidential information by applicable law.
Article 13 Intellectual property rights
13.1 The intellectual property rights to which Messem is entitled shall at all times remain the ownership of Messem. The Customer shall not use, in whatever way, such intellectual property rights without the prior written approval of Messem.
Article 14 Applicable law
14.1 All agreements with Messem are exclusively governed by the laws of the Netherlands. The applicability of the Vienna Sales convention (CISG) (United Nations Convention on Contracts for International Sale of Goods) is explicitly excluded.
Article 15 Disputes
15.1 All disputes between the Customer and Messem shall in first instance be adjudicated by the competent court in the district of Utrecht (The Netherlands), which court shall exclusively be competent.
15.2 In deviation from the provision in paragraph 1 of this Article, Messem is, at its discretion, at all times authorised to submit a dispute to the Netherlands Arbitration Institute in Rotterdam for adjudication, in accordance with the rules of this Institute.
Article 16 Final provisions
16.1 In the event one or more provisions of the Terms and Conditions prove to be entirely or partially non-binding, the remaining provisions of the Terms and Conditions remain in force between Messem and the Customer. Messem reserves the right to replace the non-binding provisions with provisions which are binding and which, in view of the object and purpose of the Terms and Conditions, deviate as little as possible from the provision being replaced.
16.2 The headings on top of the provisions are for ease of reference only and do not affect the interpretation of the provisions.