1.1 In these conditions :
"Buyer" means the person, firm, body or corporation whose order for goods is accepted by the Seller.
"Goods" means snacks, bulk snacks, beverages and corporate gifts (including any item of the Goods which the Seller is required to supply in accordance with these Conditions).
"Seller" means FIKA Management, a limited liability company under Belgian law, whose registered office or management is located at Avenue Jules Bordet, 13, 1140, Evere, Belgium and registered under the number BE 0749.950.055.
"Terms" means the general terms and conditions of sale set out in this document.
"Contract" means the contract for the purchase and sale of the Goods.
"Written" includes transmission by fax or e-mail.
1.2 Any reference in these Conditions to any term is a reference to the terms of these Conditions.
1.3 Any reference in these Terms to a provision of law shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
1.4 The headings in these Conditions are for convenience only and do not affect their interpretation.
2.1 Subject to clause 2.3 hereof, any order accepted by the Seller shall be deemed to incorporate only these Conditions which shall govern the Contract to the exclusion of all other terms, provisions, conditions and warranties (other than any condition or warranty implied by Belgian law the exclusion or restriction of which is prohibited, void or unenforceable by virtue of that law), even if included or referred to in any Buyer document.
2.2 Any term or condition stipulated by a Buyer which is in rejection of, in addition to or inconsistent with these Terms and Conditions and any other term or condition agreed in Writing by the Seller shall be deemed to be a counter-offer to the Seller and shall not be binding on the Seller unless accepted in Writing by the Seller. If the Seller rejects or does not accept such counter-offer, such rejection or non-acceptance shall be deemed to be a renewed offer to proceed on the basis of these Conditions and any others accepted by the Seller and, accordingly, performance by the Seller shall in that event be deemed to be governed by the terms of such renewed offer by the Seller.
2.3 No variation of these Conditions shall be binding unless accepted in writing by the Seller.
2.4 The Seller's employees or agents are not authorised to make any alterations to these Conditions or to make any representations in relation to the Goods unless confirmed in Writing by the Seller. By entering into the Contract, the Buyer acknowledges that it is not relying on any such representations which are not so confirmed and waives any claim for breach thereof.
2.5 Any advice or recommendation given by the Seller or its employees or agents to the Buyer or its employees or agents in relation to the storage or handling of the Goods which is not confirmed in writing by the Seller shall be followed or acted upon entirely at the Buyer's risk and therefore the Seller shall not be liable for any such advice or recommendation which is not confirmed.
3.1 By placing an order for the Goods, the Buyer acknowledges that all information regarding weights, measures, ingredients and other data relating to the Goods listed on the website - www.fika.be, price lists, advertisements and other promotional material produced by the Seller are approximate only and are intended to provide the Buyer with a general guide, the accuracy of which must be verified by the Buyer himself. The Buyer acknowledges that to the best of the Seller's knowledge and belief the information contained in the above material is true and accurate as of the date of printing, but that no representations of any kind have been made to the Buyer by the Seller or its agents and that the Buyer has relied on its own judgement as to the nature and quality of the Goods and their suitability for the Buyer's purpose.
3.2 Any typographical, clerical or other error or omission in any sales literature, price list, acceptance of offer, invoice or other document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller.
3.3 The Buyer shall be responsible to the Seller for the accuracy of the terms of any order submitted by the Buyer, and for providing the Seller with any necessary information relating to the Goods in sufficient time to enable the Seller to perform the Contract in accordance with its terms.
3.4 The Seller reserves the right to make any changes to the specification of the Goods which are necessary to comply with any applicable statutory or EC/EU requirements or, where the Goods are to be supplied to the Seller's specification, which do not materially affect their quality.
3.5 No order accepted by the Seller may be cancelled by the Buyer except with the Seller's consent and provided that the Buyer fully indemnifies the Seller against all losses (including loss of profit), costs (including the cost of all labour and materials used), damages, costs and expenses incurred by the Seller as a result of the cancellation.
3.6 Orders will be delivered in cartons or pallets.
4. Prices of goods
4.1 Unless otherwise agreed in writing by the Seller, the Seller reserves the right to change the price quoted for the Goods in the Seller's published price list, as displayed on the Seller's website, and the price of the Goods shall be the price in force at the date of delivery of the order.
4.2 Unless otherwise specified in any of the Seller's price lists, the Seller shall deliver to the Buyer's premises in accordance with the Seller's shipping policy set out in the terms and conditions of its website.
4.3 The price is exclusive of value added tax (if applicable), which the buyer is also obliged to pay to the seller.
4.4 All prices are expressed in euros (€).
5. Terms of payment
5.1 The Seller shall be entitled to invoice the Buyer for all sums due under the Contract on delivery or at any time after delivery of the Goods, unless the Buyer wrongfully fails to take delivery of the Goods, in which case the Seller shall be entitled to invoice the Buyer for the price at any time after the Seller has handed over delivery of the Goods.
5.2 The Buyer shall pay all sums due under the Contract within 14 days of the date of delivery of the Goods. Amounts due shall not be deemed to have been paid until the seller has received cleared funds. The time limit for payment of sums due is an essential term of the contract.
5.3 The Buyer shall pay the price in full without any discount, deduction, set-off or abatement for any reason whatsoever, unless otherwise agreed in writing by the Seller.
5.4 If the Buyer fails to make payment by the due date, then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to:
5.4.1 cancel the contract or suspend any further deliveries to the buyer.
5.4.2 to apply any payment made by the Buyer to the Goods (or to goods supplied under any other contract between the Buyer and the Seller) as the Seller sees fit (without prejudice to any purported appropriation by the Buyer), and
5.4.3 charge the Buyer compound interest (before and after any judgment) on the amount outstanding at the rate of 4 per cent per annum above the base rate of the National Bank of Belgium from time to time, accruing from day to day, until payment in full is made (part of a month being deemed a full month for the purposes of calculating interest).
6.1 Delivery of the Goods shall be made to the address specified by the Buyer and accepted by the Seller. The Buyer shall make all arrangements to take delivery of the Goods whenever they are offered for delivery by the Seller and if the Buyer has not made such arrangements the Seller shall leave the Goods at or as near as practicable to the address stipulated and delivery shall be deemed to have been properly made by that means.
6.2 All dates given for delivery of the Goods are approximate only and the Seller shall not be liable for any delay in delivery of the Goods howsoever caused. The time of delivery is not determinative unless otherwise agreed in writing by the Seller. The Goods may be delivered by the Seller in advance of the estimated delivery date by giving reasonable notice to the Buyer.
6.3 In the event of non-delivery of the goods, the Buyer must inform the Seller in writing within two days of the delivery date set by the Seller.
6.4 In the event of incomplete delivery, the Seller's liability shall be limited, at the Seller's option, to making good the delivery or granting credit for it.
7. Risk and ownership
Title and risk of damage or loss of the goods shall pass to the buyer upon delivery.
8. Intellectual property
8.1 The Goods, labels, trademarks, logos, confidential files and other information are supplied by the Seller on the express condition that all copyright and other intellectual property rights shall vest solely in the Seller and remain its property.
8.2 The Buyer agrees to assist the Seller and to do all such acts and things as the Seller's legal advisers may advise are necessary or desirable in order to give the Seller the full benefit of the provisions of Clause 8.1 above.
8.3 Goods sold in retail packaging may only be resold by the Buyer in the packaging provided by the Seller and in no circumstances may labels, marks or logos other than those applied by the Seller be marked on or attached to the Goods or the packaging.
9. Guarantees and liability
9.1 The Seller warrants that at the time of delivery the Goods will be :
9.1.1 comply in all respects with European food safety laws and any legislation or regulations governing the manufacture, packaging and supply of food products; and
9.1.2 be of merchantable quality as described by the Seller.
9.2 Except as expressly provided in these Conditions, all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law. 9.3 The Seller shall not be liable for any damage to or defect in the quality or condition of the Goods resulting from any wilful damage, negligence, misuse or alteration of the Goods without the Seller's approval or from any failure to comply with any instructions issued by the Seller (whether oral or in writing) including any storage and handling instructions issued by the Seller from time to time, a copy of which is available to the Buyer from the Seller upon request.
9.4 As a condition precedent to any claim by the Buyer in respect of any damage, defect or loss in respect of the Goods delivered by the Seller, the Buyer shall:
9.4.1 inspect the Goods immediately on delivery or as soon as reasonably practicable thereafter and give details of the defect, damage or loss on any carrier's delivery note;
9.4.2 notify the Seller's customer service within 24 hours by telephone of the defect, damage or loss;
9.4.3 confirm such a claim in Writing to the Seller within 3 days of delivery of the Goods in question?
9.4.4 keep the Goods in accordance with the storage and handling instructions set out in Clause 9.3 and give the Seller the opportunity to inspect the Goods in question within a reasonable time after delivery. If delivery is not refused, and the Buyer does not notify the Seller accordingly, the Buyer shall not be entitled to reject the Goods and the Seller shall have no liability for any such defect, damage or loss and the Buyer shall be liable to pay the price as if the Goods had been delivered in accordance with the Contract ? and
9.4.5 not to dispose of such Goods without the express permission of the Seller and then only in accordance with the Seller's instructions.
9.5 Where any valid claim in respect of any of the Goods is based on a defect in the quality or condition of the Goods and is notified to the Seller in accordance with these Conditions, the Seller shall be entitled to replace the Goods (or the item in question) free of charge or, at the Seller's sole discretion, to refund to the Buyer the price of the Goods (or a pro rata part of the price) and the Seller shall have no further liability to the Buyer.
9. 6. Except in the case of death or personal injury caused by the Seller's negligence, the Seller shall not be liable to the Buyer by reason of any representation, or any implied warranty, condition or other term, or any obligation at common law, or by virtue of the express terms of the Contract, for any loss of anticipated profits, damage to the Buyer's reputation or goodwill, loss of anticipated future business, damages, costs or expenses payable by the Buyer to any third party or any other indirect or consequential loss (and whether caused by the negligence of the Seller, its employees or agents or otherwise) arising out of or in connection with the supply of the Goods or their use or resale by the Buyer except as expressly provided in the Conditions.
9.7 The Seller's liability (if any), whether in contract, tort or otherwise, in respect of any defect in the Goods, or for any breach of the Contract or any duty owed to the Buyer in connection therewith or for any failure to deliver the Goods, shall be further limited to the value of the defective Goods in question.
9.8 The Seller shall not be liable to the Buyer or be deemed to be in breach of the Contract by reason of any delay in performing or failure to perform any of the Seller's obligations in relation to the Goods if the delay or failure is due to any cause or circumstance beyond the reasonable control of the Seller. Without prejudice to the generality of the foregoing, the following shall be deemed to be causes beyond the reasonable control of the Seller
9.8.1 force majeure, explosion, flood, lightning, storm, fire or accident?
9.8.2 war, hostilities (whether declared or not), sabotage, insurrection, civil commotion or requisition ;
9.8.3 acts, restrictions, regulations, orders, prohibitions or actions of any kind by any governmental, parliamentary or local authority (including the refusal or revocation of any licence or consent);
9.8.4 import or export regulations or embargoes ;
9.8.5 theft or malicious damage?
9.8.6 strikes, lockouts or other industrial action or trade disputes (whether involving employees of the Seller or a third party) ;
9.8.7 difficulties in obtaining raw materials, labour, fuel, parts or machinery or failure of suppliers or subcontractors for any reason; or
9.8.8 Power failure or machinery breakdown.
The Buyer agrees to indemnify the Seller against all damages, losses, costs, claims or expenses incurred by the Seller in respect of claims made against the Seller by any third party for :
10.1.1 any loss, injury or damage caused wholly or partly by the Buyer's failure to store, display or handle the Goods in accordance with the Seller's instructions or requirements (whether oral or written);
10.1.2 any loss, injury or damage in any way connected with the performance of this contract, provided that this clause does not require the Buyer to indemnify the Seller for any liability arising from its own negligence.
11. Storage, Handling and Disposal
11.1 The Buyer shall comply fully with all written instructions issued by the Seller in respect of the storage and handling of the Goods.
11.2 Where the Goods are supplied by the Seller with an expiry date, the Buyer shall not sell, display or store such Goods:
11.2.1 when the expiry date or use-by date provided has expired.
11.2.2 with other goods that have passed the expiry date or use-by date provided with those goods.
11.3 The Seller shall not be liable for goods sold by the Buyer in breach of this clause 11.
11.4 The Buyer is responsible for making the products available to its employees in the correct manner and, where applicable, for providing the nutritional, allergenic and other legal information on the products in the language(s) understandable to them. Nutritional, allergenic and other legal information on the products can be requested in FR, NL or ENG from the Seller upon written request if necessary
12. Bar codes
The printing of barcodes on goods supplied by the Seller is not required under any contract between the Seller and the Buyer. The Seller shall use its best endeavours to comply with the rules of the Article Numbering Association but shall not be liable to the Buyer (whether in negligence or otherwise) for any loss, damage or expense attributable to the absence or error in the printing of such barcodes.
13. Consumer complaints
In addition to the steps required under clause 9.4 hereof, the Buyer shall immediately notify Customer Services in the event that the Buyer receives a complaint from a consumer and undertakes to the Seller that neither it nor its employees or agents shall make any statement to a consumer (whether orally or in writing) which may be construed as an admission of any liability on the part of the Seller. If the Seller accepts that the cause of the complaint is due to a defect or lack of quality in the goods, all negotiations and agreements as to a compensatory payment (if any) to be made to the consumer shall be made by the Seller and the Seller shall not be liable to pay to the Buyer or the consumer any sum not negotiated or agreed by it.
14. Delivery trays, displays and equipment
All delivery trays and materials marked with the Seller's identification or supplied by the Seller are the property of the Seller and must be returned promptly by the Buyer. Displays and, where applicable, jars must be returned or taken back to the Seller within 30 days of the date of termination of the contract. If this is not the case, the Seller reserves the right to charge a flat rate of 50 euros per missing display.
The Buyer shall not assign or transfer the Contract or any benefit arising therefrom without the written consent of the Seller.
Any notice required or permitted to be given by either party to the other under these Conditions shall be in writing and addressed to the other party at its registered office or principal place of business or at such other address as may at the relevant time have been notified to the party giving the notice in accordance with this provision. Such notice shall be deemed to have been served:
16.1 if sent by prepaid first class mail to the party to whom it is given, on the third day after the sending ? or
16.2 if sent by fax to the recipient's fax number, upon receipt.
The failure of the Seller to enforce any of these Terms at any time shall not constitute or be deemed to constitute a waiver of the Seller's rights hereunder, nor shall it affect in any way the validity of any part of these Terms or prejudice the Seller's right to take any subsequent action.
Packaged and bulk snack subscriptions can be cancelled at any time with two months notice.
If any provision of these Terms is held by any competent authority to be illegal, invalid or unenforceable in whole or in part, the validity of the remaining provisions of these Terms and the remainder of the provision in question shall not be affected and shall continue to be valid and enforceable to the fullest extent permitted by law.
19. Technical data sheets and product information
The information contained in the data sheets is a representation of the average properties of the product analyses as tested on composite samples and the typical analyses should not be considered a guaranteed specification. Individual deliveries and grab sample analyses may not correspond to the above typical values. Additional handling, transport or inappropriate or prolonged storage may affect product analyses. FIKA MANAGEMENT SRL accepts no responsibility for any loss or damage that may arise from reliance on the above information or its use in relation to the products.
20. Choice of law
These terms and conditions and any contract entered into pursuant to these terms and conditions shall be governed by and construed in accordance with Belgian law and the seller and the buyer agree to submit to the exclusive jurisdiction of the Belgian courts in Brussels in the event of any dispute.