GENERAL TERMS AND CONDITIONS OF SALE

 

1. AREA OF APPLICABILITY 

 

1.1. Unless explicitly agreed otherwise in writing, the present terms and conditions of sale shall apply to all present and future sales and purchase agreements between MENWA Duty Free B.V., with registered office at 6/F. Office 6.11, Bargelaan 200, 2333 CW Leiden, The Netherlands, under the Dutch Chamber of Commerce with number 66492564 (hereafter referred to as ‘Seller‘) and the Buyer for goods and / or services, unless explicitly agreed otherwise in a written agreement which is signed by both parties 

1.2. No provision whatsoever in the Buyer’s documents (including its general terms and conditions) is applicable to the sales by Seller. Preference for other general terms and conditions can only be given in writing, in which case the present General Terms and Conditions shall apply supplementary. 

1.3. By entering into an agreement with Seller, the Buyer declares to have received a copy of these General Terms and Conditions and accepts these General Terms and Conditions. 

 

2. ORDERS AND TERMS OF DELIVERY 
 

2.1. Orders and/or terms of delivery are only valid if accepted by Seller in writing (e-mails are considered to be a written confirmation). The presumptive delivery date will be agreed upon when the order is placed. Seller or its representative will use reasonable endeavors, to deliver the ordered goods or services on time. The Buyer acknowledge-edges that, unless explicitly agreed otherwise in writing, the delivery date for goods or services is indicative. Non-compliance with the indicative term shall in no event give cause for the cancellation of the agreement or entitlement to compensation, unless explicitly agreed otherwise in writing. Seller may deliver the goods by installments, which shall be invoiced and paid for separately. Each installment shall constitute a separate contract. 

2.2. Accepted orders are binding upon both parties. In case the Buyer cancels an accepted order, the Buyer will be liable to pay 5% of the total order value as damages to Seller in accordance with clause 4.12, without prejudicing Seller’s right to prove and claim higher damages or to demand that the agreement has to be respected. If a deposit payment is paid by the Buyer, the 5% damages shall be deducted from the deposit payment and refunded, if the amount exceeds the damages. The Buyer shall have no right to cancel accepted orders of custom-made goods, custom-made orders and products with a short expiry date. In case the Buyer cancels an accepted order of custom-made goods it shall nonetheless be held to pay the purchase price and all additional costs and damages in full. 

2.3. If Seller’s order confirmation contains any change or addition or differs in any way from the Buyer’s order, it shall be binding upon the Buyer unless it notifies Seller about its disagreement within 8 days after receiving the order confirmation. 

2.4. Seller retains the right to suspend the execution of an order if the Buyer’s account at Seller indicates that the Buyer is in default of any payment obligation to Seller or its subsidiaries or if the Buyer demonstrates to be insolvent. 

2.5. In the event of a refusal to take possession of an order or if there is a delay in the delivery as a result of a suspension of an order for which the Buyer is directly or indirectly responsible, storage costs will be charged to the Buyer, without prejudicing Seller’s right to cancel the agreement. 

 

3. PRICES - TAXES 

 

3.1. The price is as stated in the quotation and/or order confirmation as the case may be. Price calculations or offers are indicative and non-binding (without prejudice to clause 3.3) until accepted by Seller. In no event shall prices confirmed by Seller for one order be binding for subsequent orders. 

3.2. These prices are always subject to possible increases if this is a result of the evolution of their fixed and/or variable costs (e.g.: wages and other social security contributions, costs of material, processing costs, energy costs, exchange rates, etc.) . If the price is adjusted as described in point 3.2., this will be in proportion to the stated change in the cost structure. Only 80% of the agreed price can increase. The remaining 20% shall not be modified. 

3.3. The prices exclude transport costs (if applicable), insurance costs, packaging costs, VAT, levies, import and export duties, etc., unless explicitly stated otherwise in writing 

3.4. If the delivery term, the place of delivery, or the circumstances of the delivery change at the request of the Buyer, or if the Buyer has provided incorrect information to this end, Seller is entitled to payment of the additional costs incurred. 

3.5. The Buyer cannot set off any of its claims against any debt towards Seller (whether or not those debts arise from the purchase of goods or services from Seller). 

3.6. In the event the sales takes place as sales of bonded/non-union goods it is the obligation of the buyer to perform the appropriate customs formalities for export/import of transit. In this case the trademarks rights might not be exhausted and full responsibility is for the account of the buyer. If the seller arranged any customs formalities this will always for the account of the buyer. Buyer is obligated to perform the correct follow up on these documents as stipulated by the local rules of the customs. May as a result of non-compliance the customs demand a DUTY/VAT/TAX is to be beard by the buyer upon 1st demand.
 

4. PAYMENTS - CREDIT LIMITS– INTEREST – LIQUIDATED DAMAGES
 

4.1. Seller’s invoices are payable to Seller’s designated bank account at the latest on the date of delivery of the goods, unless agreed otherwise in writing. Time of payment is of the essence. For the avoidance of doubt, in case of maritime transport, payment is due by the Buyer on receipt of the Bill Lading at the latest. 

4.2. The invoice has been settled when the complete amount stated on the invoice has been received on Seller’s designated bank account as indicated on the front of the invoice. All bank and exchange costs connected to the collection of the amount will be charged to the Buyer. Representatives are not authorized to receive payments. 

4.3. Invoices that are not disputed by registered letter or e-mail, within eight days after their issuing will be considered to have been fully accepted. 

4.4. If the Buyer fails to pay in full any invoice by the due date, or fails to pay in full any other payment due to Seller under the agreement and/or these General Terms and Conditions by the due date for payment, then: 

(a) The Buyer shall pay interest on the overdue amount at the rate of 10% per annum (except that if the legal rate of interest is higher, it shall be applied). Such interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount. The Buyer shall pay the interest together with the overdue amount; and 

(b) The Buyer shall pay Seller on demand (and within fourteen days of such demand) 10% of the outstanding balance, with a minimum amount of 250,00 EURO for costs associated with amongst other things the collection of the amounts due and with the adverse consequence on Seller’s cash flow, as liquidated damages. The parties confirm that this sum represents a genuine pre-estimate of Seller’s loss. This paragraph is without prejudice to Seller’s right to prove and claim any higher damages. 

4.5. Late, incomplete or non-payment of one expired invoice will cause all other invoices, for which a particular installment term has been agreed on, to become immediately payable, without previous notice of default. Interest for late payment is due as from the moment that the non-expired invoices become payable. Liquidated damages may in addition be due in accordance with clause 4.4.(b). 

4.6. Partial payments will firstly be deducted from interest due under clause 4.4, liquidated damages payments due under clauses 4.4.(b) and 4.12 and possible costs and only then from unpaid invoices. 

4.7. Any use of promissory notes, cheques or permission to draw a bill to cover the agreed upon price shall never be regarded as a renewal of the debt of the original invoice, nor will it limit or alter any ‘right of retention’, agreement or territorial jurisdiction. 

4.8. In the event that the Buyer has already transferred the goods he purchased from Seller to a third party but has neglected to fulfill its obligations towards Seller, the Buyer shall be obligated to transfer to Seller the claim for payment he has towards his buyer. 

4.9. Seller can, at its sole discretion, demand guarantees or warranties from the Buyer at any time (e.g. in the event there are indications of a negative financial position of the Buyer). These warranties or guarantees apply as a suspensory condition for the execution or further performance of the agreement. 

4.10. Seller is entitled to suspend or postpone its obligations in connection with other current contracts between the parties to the extent that the Buyer has not complied with a payment condition or other obligation. Seller reserves the right to suspend delivery of any goods or services until the Buyer’s credit is back within the agreed limits or until the Buyer complies with such payment condition or other obligation. Delays in payment by the Buyer of (certain advances on) the price may give rise to a proportionate delay in the delivery term. 

4.11. In the event of late payment, Seller is entitled to cancel the agreement, or according to Seller’s choice to request the enforced implementation of the agreement, all without prejudice to Seller’s other rights and remedies under these General Terms and Conditions, at law, in equity or otherwise. Seller shall be entitled to pick up or demand that the goods be returned at the Buyer’s expense and exercise its right to compensation including under clause 4.12. 

4.12. Liquidated Damages. If the agreement / any accepted order is cancelled by the Buyer pursuant to clause 2.2 or by Seller pursuant to 4.11 (or pursuant to any other breach by the Buyer), the Buyer shall pay Seller on demand (and within fourteen days of such demand) 30% of the outstanding balance as liquidated damages. The parties confirm that this sum represents a genuine pre-estimate of Seller’s loss. This paragraph is without prejudice to Seller’s right to prove and claim any higher damages. 
 

5. RETENTION OF TITLE
 

5.1. The delivered goods will remain property of Seller until full settlement of all claims of Seller against the Buyer under all business relations between the parties, including interest and liquidated damages, if applicable. If the Buyer has not yet (completely) paid the purchase price, the Buyer will notify third parties (for example a curator, insolvency administrator and creditors) of Seller’s retention of title by registered letter each time this is required by the circumstances, including but not restricted to the situation wherein a third party is threatening to seize or has seized the goods. The Buyer will inform Seller of this immediately by registered letter. 

5.2. The Buyer warrants (if necessary on behalf of a third party (buyer) or holder) that Seller shall be notified of the location of the goods at its first request and that they shall be made available to Seller again at the expense and risk of the Buyer if Seller so requests. For as far as is necessary, Seller shall be granted both an irrevocable mandate for repossession, and a mandate to enter the premises of the Buyer (or if necessary of the third party) for this purpose. 

5.3. The risk attached to the sold goods will pass to the Buyer at the moment of consent to the conditions of the purchase. Included herein is the risk in the event of unusual cause, coincident and Force Majeure, or similar circumstances arising from whichever party. 

5.4. The Buyer is not entitled to dispose of the goods in the event the related purchase price has not been paid in full. 

5.5. In the event the Buyer sells or otherwise transfers the goods, in breach of clause 5.4, the Buyer's claim for payment towards its customer shall be automatically assigned to Seller, Seller hereby accepting such assignment. The Buyer shall inform its customers of the assignment to Seller and shall provide to Seller all information and 2 documents on the collection of the claims. 

5.6. The Buyer shall provide for appropriate insurance on the delivered goods with a reputed insurance company for damage, losses, depreciation, devastation and theft, and provide Seller proof hereof at first request. The Buyer assigns his insurance claims from damage, losses, depreciation, devastation and theft from the goods to Seller, Seller hereby accepting such assignment. 

5.7. As far as this clause concerning the retention of title is not in accordance with other clauses agreed upon between the parties, then this clause shall prevail.

 

6. PLACE OF DELIVERY 

 

6.1. Delivery will take place at Seller’s registered office, always ex works (ICC Incoterms® 2020), even if transport is provided by Seller, except in case parties agree explicitly otherwise in writing. In the event transport is provided by Seller, Seller will only act as the Buyer’s agent. All transport costs are payable by the Buyer. 

6.2. Dispatch and transport will take place at the Buyer’s risk, irrespective of the way in which the transport is organized. The Buyer can have the goods insured at their own expense and is obliged to inspect the equipment upon receipt and to exercise their right of recourse against the conveyor within the required time limit. 

 

7. PACKAGING 

 

Unless particular agreements, ordered goods will be delivered in their original packaging. Seller reserves the right to modify its goods and packaging without prior notice. Ordered quantities may be modified in order to meet the standard packaging units. 

 

8. DOCUMENTATION AND PRODUCT SPECIFICATIONS 

 

At written request, the Buyer will receive two copies of the documentation relating to the ordered goods. All specifications and product concepts are confidential and stay property of Seller. They may only be used by the Buyer in as far as necessary for the use of the goods. Reproductions or use of this information for other purposes is punished by law and will be prosecuted. 

 

9. COMPLAINTS 

 

9.1. The Buyer must check if the delivered quantities correspond with the ordered quantities immediately upon receipt of the dispatch. Complaints concerning quantities, (non)-conformity or condition of the delivered goods must reach Seller within 3 days after receipt of the dispatch per registered letter or facsimile on penalty of expiry of the complaint. 

9.2 Complaints about defects must be reported to Seller, 5 days after receipt of the goods at the very latest (in the event of visible defects) and 5 days after discovery at the very latest (in the event of hidden defects) by means of a registered letter or facsimile message stating the reason and mentioning all relevant data, amongst others: order and invoice number. Buyer and Seller hereby agree that they consider a time period of six months after the delivery date of the goods to the Buyer a reasonable time period during which Buyer has the right to claim defects of the goods to Seller. Seller shall have no obligation to accept late complaints. Use or sale of the goods will nullify any liability for Seller, except in case of hidden defects. Complaints and/or disputes of whatever nature, never give the Buyer the right to suspend the fulfillment of its obligations towards Seller or the right to cancel the complete order or delivery. Without prejudice to clause 10.1, Seller’s maximum liability will not ever exceed the price paid for the goods in question. 

 

10. SALE IN CONSIGNMENT 

 

10.1 When Seller (hereinafter also: ‘Consignor’) and Buyer (hereinafter also: ‘Consignee’) have made a specific consignment sale agreement and have agreed that the goods as specified in the consignment sale agreement (hereinafter also: ‘Consigned Goods’) will be sold on consignment, the following will apply, without prejudice to the aforementioned terms and conditions: 

10.2 The Consignor, at all times, owns right and title to the items as described in the consignment sale agreement. Only the Consignor will be the legitimate and legal owner of the goods sold on consignment. The Consignee only desires to take possession of the Consigned Goods with the intention of selling it to a third party. For this reason, Seller has the right to (re)claim the Consigned Goods at all times. Buyer is obliged to return all Consigned Goods in its possession to Seller upon first demand of Seller. 

10.3 The Consignee shall bear all expenses for shipping the Consigned Goods from Consignor to Consignee and will bear all other necessary (and additional) transportation costs of the Consigned Goods. 

10.4 In case the Consignee is declared bankrupt, becomes insolvent or generally unable to pay its debts when due, or the Consignee does not meet the specific conditions as set out in the consignment sale agreement or these general terms and conditions for any other reason, the Consignor will have the right to terminate the contract. In that case the Consignee will lose full power of disposition of the Consigned Goods and Consignee is obliged to return all Consigned Goods to Consignor as soon as possible through an insured transportation. This will apply to both goods which have already been delivered to Consignee and goods which are, on that moment, transported to Consignee. 

10.5 In case the Consignee is declared bankrupt, the conditions as set out in article 10.2 have the effect that the Consigned Goods will fall outside the bankruptcy and therefore will not and cannot form part of the bankrupt’s estate. 

10.6 Any loss or damage occurring to the Consigned Goods, either during or due to the transportation of the Consigned Goods or during the time of storage at Consignee shall be at Consignee’s risk. Consignor will invoice Consignee for items lost or damaged at the full purchase price. Consignee will therefore insure the Consigned Goods in stock with a reputable Insurance Company against all customary perils at Consignee’s own expense. 

10.7 Consignee will hold the Consigned Goods in a designated storage area separate from the Consignee’s own inventory and other property. Consignee is not allowed to remove labels and identifying marks from the Consigned Goods. 

 

11. LIABILITY - FORCE MAJEURE - PROVISION OF INFORMATION 

 

11.1. Nothing in these General Terms and Conditions shall limit or exclude Seller’s liability for any liability which may not be limited or excluded by applicable law. 

11.2. Subject to clause 10.1, Seller shall have no liability to the Buyer under or in connection with the order for: 

(a) the consequences of use of, and any consequences for the user, a third party or its goods resulting from the delivered and/or transported goods; or 

(b) any loss of profits, or any indirect or consequential loss or damage howsoever arising (including but not limited to: damage to property, financial loss, loss of profit, personnel costs, damage to third parties, loss of income), 

and the Buyer hereby waives its rights of recourse with regard to Seller and/or those appointed by Seller and releases Seller and/or those appointed by Seller from all such liability relating thereto. 

11.3. All cases of Force Majeure release Seller from its liability for anything related to the non-implementation of its obligations within the established period. In the event of Force Majeure, Seller is entitled to suspend the agreement in as far as it has not yet been carried out either for the duration of the period of Force Majeure or to cancel it without being under an obligation to pay compensation.

11.4. For the application of these General Terms and Conditions, Force Majeure is taken to mean: every occurrence which is reasonably beyond Seller’s control, including but not limited to strikes, lock outs, delays or disruptions in transport, acts of war, riots, fire, orders, by-laws or regulations from the government or administration, inability to obtain natural gas and/or other fuels, supply difficulties, scarcity of materials or lack of products for manufacture, floods, earthquake, nuclear disaster or events, weather conditions that make the execution of the agreement temporarily difficult or impossible, breakdown in machinery, mistakes or delays payable by Seller’s suppliers, acts by third parties, one or more manufacturing mistakes in material from one of Seller’s suppliers, etc., irrespective of whether these problems occur at Seller or the supplier from whom Seller obtains goods and without Seller being obliged to prove the influence thereof. 

11.5. Seller does not guarantee the quality of its goods if they are or have been subject to abnormal use, bad maintenance, or unauthorized repairs by the Buyer or third parties. 

 

12. INTELLECTUAL PROPERTY / TRADEMARK RIGHTS

 

12.1. The Buyer is not authorized to use the trade name or any trademark of Seller, without written permission thereto. 

 

12.2. Goods offered/sold on a T1 status are not in free circulation (T1) and trademark rights might not be exhausted for sales in the EEA (European Economic Area). These T1 status goods are being offered/sold under the governing VAT law stating "VAT zero rated due to delivery of non union goods, art. no.: 156-2006/112 EU VAT directive." It is the buyer’s sole responsibility to respect the current laws and regulations in the client's domicile country and/or area of sales, in respect to any trademarks of the respective brand owner whilst purchasing and/or selling T1 status goods. If provided a supplier's declaration to state the preferential origin status of these T1 status goods, this declaration is solely to state the preferential origin of these goods.

 

13. INDIVISIBILITY 

 

13.1. The invalidity or non-applicability of one or more of these stipulations does in no way affect the validity of the other conditions. The invalidity or non-applicability of one or more of these stipulations does not in any way constitute a reason for terminating the agreement. 

 

14. JURISDICTION AND APPLICABLE LAW 

 

14.1. In the event of a dispute over an agreement between the Buyer and Seller, irrespective of its nature and the place of delivery, the Court of The Hague, judicial department of The Hague, the Netherlands shall have exclusive jurisdiction, even if it concerns accepted bills which are payable and/or domiciled outside this judicial district. Nevertheless, if Seller is the plaintiff, it shall be entitled – at its free choice – to summon before the court having jurisdiction over the Buyer’s place of business. 14.2. All our agreements are governed by and construed in accordance with the laws of the Netherlands, with exclusion of (1) all conflict of laws rules, (2) the UN Convention on the International Sale of Goods (1980), and (3) the NY Convention on the Limitation Period in the International Sale of Goods (1974). In accordance with article 6 of the Convention on the International Sale of Goods (1980) Seller and Buyer agree to exclude the application of this Convention at all times, irrespectively of the nature of the agreement or the involved parties. 3 Without prejudice to any other provision of these General Terms and Conditions, any claims by the Buyer arising out of or in connection with an agreement between parties or any purchase order will in any event become time-barred after expiration of one (1) year as from the date of delivery of the relevant goods. 

14.3. In the event legal rules with mandatory application apply, such rules shall prevail over the application of these General Terms and Conditions, to the extent of their field of application.

 

END OF GENERAL TERMS AND CONDITIONS OF SALE