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by Dilan Kavak & Grégoire Labry - Badaboum, Paris
Mezan Jamaica X.O
Tokaji (Hungarian 2007 sweet wine )
Floc de Gascogne
General Purchasing Terms and Conditions
These General Purchasing Terms and Conditions may be amended by Marussia Beverages BV from time to time. The current form of General Purchasing Terms and Conditions may be found at www.marussia beverages bv beverages.com, which replace any previous agreement for the purchase of our products (“General Purchasing Terms and Conditions”). Any amendment made to the General Purchasing Terms and Conditions will not affect any order made by Purchaser prior to the date of amendment.
The goods covered by this order acknowledgement form (this “Order Acknowledgement”) are supplied by Marussia Beverages BV Beverages B.V. or its affiliates (“Marussia Beverages BV ”) to you (“Purchaser”) pursuant to the General Purchasing Terms and Conditions. By accepting the goods covered hereby, Purchaser waives all terms and conditions contained in its order form or other documents that are different from or additional to the terms and conditions set forth below, and all such different or additional terms and conditions shall be null and void. If Purchaser’s order form operates as an offer, Marussia Beverages BV ’s acceptance is hereby expressly made conditional on Supplier’s assent to Marussia Beverages BV ’s General Purchasing Terms and Conditions.
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1. Order ConfirmationOrders for the goods shall be in writing and are accepted subject to availability. The minimum quantity of each order is a pallet. In the event that Marussia Beverages BV is unable to supply the requested quantities, Marussia Beverages BV shall as soon as possible inform Purchaser of such inability, it being understood however that Marussia Beverages BV shall in no event be liable to Purchaser for any unfulfilled orders. This Order Acknowledgement shall supersede any previous written or oral communication exchanged between the parties concerning the subject matter of the Order Acknowledgement. No change may be made to the Order Acknowledgement by the Purchaser without the written approval of Marussia Beverages BV . Any difference in price or time for performance resulting from such changes shall be equitably adjusted and confirmed in writing by Marussia Beverages BV . The Order Acknowledgement cannot be subcontracted, assigned, or transferred to a third party by Purchaser without the written approval of Marussia Beverages BV .
2.Price & PaymentThe price of goods does not include duty, excise, VAT or any other local taxes in any location which, if applicable, will be invoiced to and shall be payable by Purchaser. Purchaser shall be responsible for such taxes imposed on or in connection with the Order. The prices will remain fixed for one year. Marussia Beverages BV shall be entitled to change the prices annually. Marussia Beverages BV reserves the right to modify prices at any other time during the year in case of unexpected and substantial increase in cost of goods. Changes to the price list shall be promptly communicated to Purchaser and shall come into force upon sixty (60) days following the receipt of such communication. All orders are subject to continuing credit approval by Marussia Beverages BV at its discretion. Marussia Beverages BV shall at any time have the right to require Purchaser to pay in advance or to furnish adequate security for the performance of its obligations. In the event that Purchaser fails to pay any amount due hereunder, Purchaser shall be automatically in default as a material breach of this Agreement, without any prior notice of default being required. Marussia Beverages BV shall be entitled from time to time on sixty (60) days’ prior written notice to the Purchaser to make such alterations as it may think fit to the specifications but always maintaining the image and high quality of the Products, packaging and design of any of the Products. All Marussia Beverages BV invoices will be due forty-five (45) days from the date of invoice with the date of the shipment being regarded as the date of the invoice. Purchaser may not exercise any right of set off which might otherwise be available in respect of any sums which may be due to Marussia Beverages BV . Marussia Beverages BV shall be entitled to set off any amount owing from Purchaser to Marussia Beverages BV against any amount payable by Marussia Beverages BV .
3. ShippingUnless otherwise indicated in this Order Acknowledgement, the goods will be priced on incoterm FCA Roosendaal vehicle (“Marussia Beverages BV Warehouse”), as defined in Incoterms 2000. Purchaser undertakes to pay Marussia Beverages BV for the goods by bank transfer. Marussia Beverages BV shall deliver the goods with standard applicable labels, approved by Purchaser, in accordance with all regulations applicable.
4. Delivery Marussia Beverages BV shall load the goods into the vehicle sent by Purchaser at the Marussia Beverages BV Warehouse, not cleared for export. Risk of damage to or loss of the goods shall pass from Marussia Beverages BV to Purchaser at the moment the goods are loaded into the vehicle sent by Purchaser. Purchaser shall organize and pay for the transport of the goods from the Marussia Beverages BV Warehouse by truck or other means, shall obtain and pay for insurance for the goods, and shall clear customs for export and/or import as needed. Marussia Beverages BV shall at Purchaser’s request and expense provide assistance in clearing customs for export and/or import of the goods, including providing relevant documents. The costs related to the transport (shipping charges, cost of customs formalities, and all duties, taxes, pallets and other charges payable upon export and/or import) shall be at Purchaser’s expense.
5. Acceptance Control. Promptly upon the receipt of a shipment of the goods, Purchaser shall examine the shipment to determine whether any item or items included in the shipment are in short supply, defective or damaged and all visible damage and shortages shall be noted on the freight bill/receipt and signed by representatives of both Purchaser and the transportation company. Within 5 business days of receipt of the shipment, Purchaser shall notify Marussia Beverages BV in writing of any shortages, defects or damage, which Purchaser claims existed at the time of delivery.
6. Warranties Marussia Beverages BV warrants that at the time of delivery the Products are of merchantable quality as confirmed by the certificate of origin, free from defect, and comply with all applicable laws and regulations in the Territory as communicated by Purchaser. Satisfaction of the above warranty, consistent with other provisions herein, will be limited to the replacement of the Products or, at Marussia Beverages BV ’s option, credit Purchaser with the price of the Products. Marussia Beverages BV ’s obligation under the above warranty does not extend to any of the goods which have been subject to accident or alteration in whatever way or altered by whatever cause after the risk of loss or damage has passed to Purchaser, or to any use or consumption after the “best before date” (if applicable), unless it is demonstrated that the goods did not comply, prior to delivery, with the applicable laws and regulations communicated by Purchaser, and with the applicable laws and regulations from the territory of origin of the goods with which Marussia Beverages BV must comply. THE ABOVE WARRANTY IS THE SOLE WARRANTY GIVEN BY MARUSSIA BEVERAGES BV AND IS IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESSED OR IMPLIED, STATUTORY, OR OTHERWISE, CONCERNING THE PRODUCTS.
7. Cancellation Cancellation of or change in an accepted purchase order shall only be allowed with the express written consent of Marussia Beverages BV .
8.Security Marussia Beverages BV shall retain title on all Products until the purchase price and all amounts owed to Marussia Beverages BV by Purchaser, including interests and costs, are paid in full whereupon the title shall pass to Purchaser. Purchaser agrees not to pledge or assign as security the title to the Products of which the title has not passed to Purchaser. By express agreement between the Parties, the Products in stock are deemed to be those which remain unpaid. Retention of title by Marussia Beverages BV is solely to maintain a security interest in the goods. Marussia Beverages BV reserves the right to repossess goods in circumstances where payment has not been made and there is a risk of insolvency or bankruptcy. Marussia Beverages BV and/or its carrier will therefore be allowed to enter the premises of Purchaser to collect the products covered by the retention of title clause. This procedure is not exclusive of other actions or judicial proceedings that Marussia Beverages BV may decide to undertake.
9. ConfidentialityPurchaser shall at all times keep this order and all information that it may receive from Marussia Beverages BV confidential and shall not disclose such information to any person unless Purchaser can show on documentary evidence that such information is or has become public knowledge through no fault of Purchaser or where it can be shown on documentary evidence to the reasonable satisfaction of Marussia Beverages BV that such information was known to Purchaser before it was disclosed by Marussia Beverages BV . Purchaser shall ensure that all its employees and agents abide to a similar obligation of confidentiality and shall assume full responsibility for the actions of such employees or agents in their compliance with Purchaser’s obligations of confidentiality as set out herein. Purchaser shall return all such information and other materials to Marussia Beverages BV on request and shall cease all further use of such information and materials.
10. Independent Contractor Purchaser and Marussia Beverages BV are independent contractors and under no circumstances does this Agreement grant Purchaser the position of being Marussia Beverages BV ’s representative, agent, partner, joint venturer, employee or grant Purchaser powers or rights to negotiate any agreement with third parties on Marussia Beverages BV ’s behalf. No obligation undertaken by Purchaser with third parties in order to fulfill its obligations pursuant to this Agreement shall in any way be transferable to Purchaser under any circumstance. Purchaser shall be entirely free to disclose the contents of this clause to any third party, but should Purchaser decide not to do so, it shall remain entirely responsible for the consequences of this decision.
11. Remedies If either Party is in breach of any material provision of the General Purchasing Terms and Conditions and fails to remedy such breach within sixty (60) days – except as provided in this Section 11 below -- from a written request by the other to do so, the other Party may terminate this Agreement and all other relationships immediately by notice in writing. Without prejudice to any other rights available to the Parties in respect of such termination, either of the parties may terminate this order with immediate effect by notice in writing to the other in the event of the dissolution of the other party; the other party having a winding up order made against it or passing a resolution for winding up (not being a solvent winding up for the purpose of amalgamation or reconstruction) or having a receiver appointed for its assets or making any assignment for the benefit of its creditors or ceasing to carry on its business, or in case anything analogous to the foregoing shall happen under applicable laws; or the change of control of Purchaser.
12. Force Majeure Delays in or failure of performance by a party will not constitute a breach if and to the extent and delay or failure is caused by an act of God (meaning an event independent of human intervention and due to natural causes including storm, earthquake, fire and flood), or industrial action including strike and riot and war (“Force Majeure”), provided that the Party claiming Force Majeure notifies the other Party in writing within seven (7) days of becoming aware of the Force Majeure providing details of the Force Majeure and its anticipated likely duration and effect; and uses its best endeavors to resume fulfilling its obligations as promptly as possible and provides the other Party with written notice within seven (7) days of the cessation of the Force Majeure.
13. Trademarks Marussia Beverages BV is the owner of its trademarks. Purchaser shall use the trademarks in accordance with Marussia Beverages BV ’s instructions and shall as soon as reasonably practicable notify Marussia Beverages BV of any infringement or wrongful use of our Trademark which comes to Purchaser’s attention and will co-operate at all times with Marussia Beverages BV in the prevention of any such infringement. The benefit of the use of the trademarks shall accrue to Marussia Beverages BV as exclusive proprietor thereof. Nothing herein shall be construed as granting or conferring on Purchaser any rights with respect thereto or with respect to any goodwill that may be created by Purchaser in association with the trademarks.
14. Jurisdiction & Applicable Law The Order shall be governed and interpreted by the laws of The Netherlands and interpreted accordingly (excluding any rules of conflicts of laws that would apply the substantive laws of any other jurisdiction). The parties agree that the provisions of the United Nations Convention on Contracts for the International Sale of Goods shall not apply to this order. This order constitutes the entire agreement between the parties relating to the goods or services. No modification shall be binding upon Marussia Beverages BV unless in writing signed by Marussia Beverages BV 's authorized representative.