GENERAL TERMS AND CONDITIONS (hereinafter: “GTC”) MOWI LEMMER B.V.
“MOWI LEMMER”: The private company MOWI LEMMER B.V. (VAT 0082.13.033), with registered office at 8531 HJ Lemmer, Vuurtorenweg 12.
“Customer“: Any (legal) person who purchases a product and/or places an order with MOWI LEMMER, as well as anyone who purchases a product in the name or on behalf of another (legal) person and/or places an order with MOWI LEMMER .
“New Customer“: Every Customer who purchases a product and/or places an order with MOWI LEMMER for the first time.
“Fresh Products“: All non-frozen products.
“Complaint letter“: a legally signed letter addressed to MOWI LEMMER, with an accurate indication of the products purchased, a detailed statement of the complaint, the non-conformity and/or the defect, and with the reference number of the following documents: the Customer’s order, the order confirmation from MOWI LEMMER, if any, the delivery source, and the invoice.
2. Application of the GTC and applicable law
All commercial transactions between MOWI LEMMER and the Customer are exclusively governed by (in hierarchically descending order): (1) the special conditions agreed in writing between the Customer and MOWI LEMMER, either in a separate agreement or in a delivery note; (2) these GTC; (3) art. 4-88 of the Vienna Sales Convention; (4) the Unidroit Principles; (5) Belgian law, with the exclusion of Articles 1-3 and 89-101 of the Vienna Sales Convention.
These GTC take precedence over the general and/or other terms and conditions of the Customer, even if they indicate that they are the only applicable terms and conditions.
MOWI LEMMER reserves the right to change these GTC at any time.
The possible invalidity of one or more clauses from these GTC does not affect the applicability of all other clauses.
3. Offer, order, order confirmation and cancellation
4. Price and costs
All prices are
exclusive of VAT.
MOWI LEMMER may always require an advance payment, may oblige the Customer to meet all payment obligations towards MOWI LEMMER via direct debit at a bank recognized by MOWI LEMMER, has the right to request a bank guarantee from the Customer before accepting an order from the Customer. An offer from MOWI LEMMER does not constitute any obligation/commitment on the part of MOWI LEMMER, and can be withdrawn at any time.
The prices and delivery times stated in the quotation are purely indicative and in no way apply to any other orders.
Every order from the Customer is legally binding. In the event of cancellation (by or on behalf of the Customer), the Customer owes a lump-sum compensation of 35% of the total invoice amount including VAT. Without prejudice to the right of MOWI LEMMER to prove higher damage.
MOWI LEMMER is only bound by an order if a person authorized to legally bind MOWI LEMMER confirms this order in writing or electronically, or as soon as MOWI LEMMER starts the execution of this order.
MOWI LEMMER is free to choose the parties with whom it wishes to enter into an agreement, and has the right to evaluate the creditworthiness of a (potential) Customer, before accepting his order.
If certain products are not in stock, MOWI LEMMER always has the right (without any right of recourse against MOWI LEMMER): (1) to cancel the relevant order and/or order confirmation; and/or (2) replace the non-available products with an equivalent. Any additional costs associated with this will be charged to the Customer.
MOWI LEMMER has the right to require an advance payment of the full invoice amount before accepting the order from the Customer/delivering the purchased products.
In the event of any form of delay, MOWI LEMMER has the right to charge the Customer for this, in its sole discretion, for a lump-sum estimated surplus. Examples of delays include: the absence of the Customer at the time that MOWI LEMMER/the carrier wishes to deliver the goods; non-compliance by the Customer with his (contractual) obligations, etc.
Currency fluctuations, price increases of materials, consumables and raw materials, wages, salaries, social security charges, government-imposed costs, levies and taxes, transport costs, import and export duties, insurance premiums, as well as any other cost increase with regard to the obligations of MOWI LEMMER towards the Customer, occurring between the order confirmation and the delivery of the products sold, give MOWI LEMMER the right to increase the agreed price proportionally.
5. Delivery, risk, characteristics of the product
Unless otherwise agreed in a separate agreement or on the delivery note, all deliveries are made in accordance with the Incoterm® Carriage Paid To. The risk transfer takes place as soon as the goods are handed over to the first carrier at Vuurtorenweg 12, 8531 HJ Lemmer. From this moment on, the Customer bears full responsibility and liability for the purchased products, such as constant refrigeration. The agreed delivery location is stipulated in the order confirmation and on the delivery note.
The agreed delivery conditions are always interpreted in accordance with the most recent Incoterms®, at the moment that MOWI LEMMER is bound by an order in accordance with article 4 of these GTC.
The agreed delivery times are always indicative. A delay in delivery can never oblige MOWI LEMMER to pay any compensation or fines, and can in no case give rise to dissolution of the order.
Changes to the order of the Customer automatically result in the expiry of the stated delivery times. Any delivery that was not explicitly provided for in the order from the Customer and/or the order confirmation from MOWI LEMMER is deemed to be an additional delivery at the request of the Customer, and is charged as such.
MOWI LEMMER has the right to deliver the purchased products in several parts.
The Customer is deemed to be aware of all the characteristics of the products he has purchased, and cannot derive any rights from the information, samples or models that MOWI LEMMER would provide on its own initiative or at the Customer’s request.
If it is agreed that the Customer will come to collect the purchased products himself, the Customer must collect these products at his own expense and risk at the time and place specified by MOWI LEMMER. In the absence of collection of Fresh Products, within 6 hours after the time indicated by MOWI LEMMER, the purchase of the Customer is considered canceled, and the Customer owes a fixed compensation of 35% of the total invoice amount including VAT. In the absence of collection of non-Fresh Products within 3 working days after the time specified by MOWI LEMMER, the Customer will owe a lump-sum storage fee of 1% per week of the total invoice amount including VAT. If this time is exceeded by 2 weeks, MOWI LEMMER has the right to declare the purchase of the Customer dissolved, without prior notice of default or judicial intervention, and the Customer owes a lump-sum compensation of 35% on the total invoice amount including VAT.
All (damage) compensations included in this article apply without prejudice to MOWI LEMMER’s right to prove higher damage.
6. Acceptance, delivery and complaints
All complaints regarding visible defects and/or non-compliant deliveries, including defects and damaged packages, must be made in writing by formulating a reservation on the delivery note.
With regard to Fresh Products, the Customer must carry out a thorough check of the conformity of the delivery as well as a thorough quality check of the delivered products within 6 hours after these products are offered to the Customer at the agreed place of delivery.
With regard to non-Fresh Products this period is extended to 24 hours after these products are offered to the Customer at the agreed place of delivery.
Within these periods (6 hours for Fresh Products/24 hours for non-Fresh Products), the Customer must report any complaints and/or defects to MOWI LEMMER by a Complaints Letter, failing which the Customer loses the right to claim any defect and/or non-conformity.
In any case, the Customer loses the right to claim any defect and/or non-conformity as soon as the Customer and/or a third party uses, processes, repackages and/or resells the purchased products.
In the event that a defect or non-conformity is reported to MOWI LEMMER promptly and correctly, MOWI LEMMER will, at its own discretion and insight: (1) (partially) replace the non-conforming and/or defective products; or (2) credit the incorrect part at the price of the order confirmation and/or written delivery note. The Customer acknowledges that both these measures separately entail a full and adequate compensation for any possible damage resulting from a non-conformity or defect.
The Customer may under no circumstances return products or proceed to a cover purchase.
MOWI LEMMER or its representative reserves the right to determine the defects on the spot and to investigate the causes thereof.
Complaints (regardless of whether the complaints are accepted by MOWI LEMMER) in no way release the Customer from his payment obligations, in accordance with Article 10.
The Customer is obliged to reimburse costs incurred as a result of unjustified complaints.
The liability of MOWI LEMMER is limited to the liability that is required by law, and is in any case limited to the respective invoice amount and the Civil Liability policy-operation entered into by MOWI LEMMER.
MOWI LEMMER is in no way liable for indirect damage (including loss of turnover and image damage), damage caused by the Customer and/or third parties, damage as a result of the (incorrect) use/processing of the purchased products, nor for damage caused as a result of the Customer’s failure to comply with legal and/or other obligations.
The Customer shall fully indemnify, defend and compensate MOWI LEMMER, with regard to all possible claims and procedures, as a result of (incorrect) use/processing and/or as a result of the Customer’s failure to comply with legal and/or other obligations.
8. Force majeure and hardship
MOWI LEMMER is not liable for any shortcoming in its obligations caused by force majeure and/or hardship in the broadest sense of both legal concepts, and including, among others: social unrest, traffic jams, weather conditions, technical defects, fire, scarcity of raw materials , price fluctuations, etc.
In the event of force majeure and/or hardship, MOWI LEMMER may, without prejudice to Article 5, last paragraph, of these GTC, at its own discretion and insight: (1) temporarily suspend the performance of its obligations; (2) terminate the agreement with the Customer; (3) invite the Customer to negotiate new, modified terms and conditions.
9. Invoice and payment
Complaints regarding invoices must be reported to MOWI LEMMER within three working days after receipt of the invoices by registered complaint letter.
Unless stated otherwise on the invoice, all invoices are payable net and within 30 days after the invoice date at the registered office of MOWI LEMMER.
New Customers are obliged to pay in cash upon delivery, for all deliveries that take place during 4 weeks from the first delivery.
In the event of non-payment or incomplete payment on the due date of one of the invoices, the following applies by law, without prior notice of default and without prejudice to the right of MOWI LEMMER to prove higher damage:
- an interest rate of 10% that is capitalized annually, and where each month started will be considered as a full month;
- the Customer owes a fixed compensation, equal to 10% of the invoice amount, with a minimum of 375 Euro;
- all invoices, including those that have not yet expired, become immediately due and payable;
- MOWI LEMMER has the right to make the (further) execution of the relevant and/or one or more other orders: (1) dependent on the advance payment of the total invoice amount, (2) to be suspended, and/or (3) to be dissolved extrajudicially.
The same regulation applies in the event of an impending bankruptcy, judicial or conventional dissolution, application of Belgian law dated January 31, 2009 concerning the continuity of companies, long-term payment arrears, or any other fact as a result of which MOWI LEMMER reasonably loses confidence in the creditworthiness of the Customer.
Unless explicitly agreed in writing by MOWI LEMMER, no discounts are allowed for cash payments. The Customer is not permitted to make payments to intermediaries. Only receipts signed by persons authorized to legally bind MOWI LEMMER are valid.
In the case of (partial) payment of an invoice, the Customer acknowledges approving and accepting this invoice.
Acceptance of a (partial) payment is always subject to all rights, and is charged as follows: (1) collection costs; (2) compensation; (3) interest; (4) principal amounts.
The mention of an invoice in the outgoing invoice book of MOWI LEMMER serves as a presumption of sending and receiving this invoice.
10. Retention of title
All products sold remain the property of MOWI LEMMER until full payment of the principal, any interest, costs and (fixed) damages.
If the Customer already resells the purchased products before the aforementioned amounts have been paid in full and correctly, the aforementioned right will automatically transfer to the resulting selling price.
In the event of non-payment or incomplete payment on the due date of one of the invoices, MOWI LEMMER has the right by law and without prior notice of default to reclaim the products already delivered from the Customer. Upon receipt of the products by MOWI LEMMER, and insofar as these goods are still found to be in good condition (this includes evaluating the correct refrigeration of these products), the amounts already paid will be reimbursed to the Customer after deduction of: (1) the loss of profit, fixed at 15% of the total invoice amount including VAT; and (2) a fixed compensation of 5% on the total invoice amount including VAT, for the (extra) management and administration costs. All this without prejudice to the right of MOWI LEMMER to prove higher damage.
In accordance with the Financial Security Act of 15 December 2004, MOWI LEMMER and the Customer automatically and legally offset all current and future debts relative to each other. This means that, in the permanent relationship between the two of them, only the largest claim remains on balance.
This debt comparison will in any case be opposable to the liquidator and other concurrent creditors, who will therefore not be able to object to this debt comparison.
12. Legal processing
The (repeated) non-application of any right by MOWI LEMMER can only be considered as tolerating a certain situation and does not lead to legal processing.
13. Competent court
All disputes between MOWI LEMMER and the Customer fall exclusively under the jurisdiction of the courts in Bruges.