1.1 the following words and expressions will have the following meanings:
“Applicable Law” any (a) statute, statutory instrument, bye-law, order, directive, treaty, decree or law (including any common law, judgement, demand, order or decision of any court, regulator or tribunal); and/or (b) legally binding rule, policy, guidance or recommendation issued by any governmental, statutory or regulatory body; which relates to the Contract and/or the Goods; “Business Day” a day that is not a Saturday, Sunday or public or bank holiday in Slovenia; “Buyer” the person whose order for the Goods is accepted by INCOM-Leone in accordance with Condition 2.1; “Conditions” these standard conditions of sale together with any special terms agreed in writing between the Buyer and INCOM-Leone. “Contract” a contract between INCOM-Leone and the Buyer for the sale and purchase of the Goods formed in accordance with Condition 2.1; “Goods” any goods which INCOM-Leone supplies to the Buyer (including any of them or any part of them) under a Contract; “Insolvent” the Buyer is Insolvent where it: (a) ceases, threatens to cease or, in the reasonable opinion of INCOM-Leone, appears likely to cease, to trade; (b) goes into liquidation or bankruptcy (or has a petition for its winding up or bankruptcy presented or passes a resolution for its winding up); (c) goes into administration (or is subject to an administration order or an application for an administration order made in respect of it); (d) has a receiver or administrator appointed over some or all of its assets or proposes an arrangement or compromise with its creditors; or (e) is the subject of anything analogous to the foregoing under the laws of any applicable jurisdiction; “Intellectual Property Rights” includes all (a) patents and applications for patents, trademarks and domain names and applications for the same, unregistered trademarks and rights in trade names and business names, copyright and moral rights (including copyright in recipes), know how, database rights, rights in designs and rights in inventions; and (b) rights of the same or similar effect or nature as any of those in paragraph (a) of this definition; “Prices” the price(s) of the Goods set out in INCOM-Leone price list in force at the date of dispatch of the Goods or such other price(s) as agreed by the parties in writing plus any applicable carriage and delivery charges;
2.1 Each order or acceptance of a quotation for Goods will be deemed to be an offer by the Buyer to purchase Goods upon the Conditions. The Contract is formed when the Buyer’s order is accepted by INCOM-Leone.
2.2 All offers are accepted and all Goods are sold subject to and upon these Conditions. The Buyer shall be deemed to have agreed to these Conditions in relation to all present and future dealings between the parties. No conditions of purchase proposed or stipulated by the Buyer and no other terms, conditions, warranties, particulars, standards, criteria, specifications and other matters whether written or oral, express or implied shall form part of or be deemed to be incorporated into these Conditions and/or the Contract unless agreed in writing by a duly authorised representative of INCOM-Leone. No agent or salesman of INCOM-Leone has authority to give any guarantee or warranty on behalf of INCOM-Leone or to transact business other than on the (unamended) terms of these Conditions.
2.3 Acceptance of delivery of the Goods will be deemed conclusive evidence of the Buyer’s acceptance of the Conditions.
2.4 Subject to Condition 5.3, the Buyer may not cancel the Contract.
3. THE GOODS
3.1 All samples, descriptive matter and advertising issued by INCOM-Leone and any descriptions or illustrations contained in INCOM-Leone catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods represented by or described in them. They will not form part of the Contract and this is not a sale by sample.
3.2 INCOM-Leone warrants that, at the time of delivery, (i) the Goods will comply in all material respects with the specification agreed in writing by the parties; (ii) all Goods which are (or are comprised of) foodstuffs will be fit for human consumption; and (iii) the Goods will comply will Applicable Law.
3.3 INCOM-Leone may make any changes to the specification, design, materials, ingredients, recipe or finishes of the Goods which: (1) are required to conform with any Applicable Laws; and/or (2) do not materially affect their quality.
3.4 The Buyer shall at all times comply with any instructions as to storage contained in the INCOM-Leone’s specifications relating to the Goods or contained on the packaging or labels of the Goods and comply with all legislation relating to the Goods (including without limitation the storage, packaging, labelling and supply of the Goods to its own customers) and shall not use or re-sell or otherwise supply or offer to supply to third parties any of the Goods after their “use by” or “best before” dates have expired. The Buyer undertakes to indemnify and keep INCOM-Leone indemnified against any liability, claim, damage, loss, cost or expense that the INCOM-Leone may incur arising out of the Buyer’s breach of this Condition 3.4.
4. PRICE AND PAYMENT
4.1 INCOM-Leone will be entitled to vary the Prices following any changes in the specification made at the request of the Buyer and agreed by INCOM-Leone or to cover any extra expense as a result of the Buyer’s instructions or lack of instructions or to comply with the requirements referred to in Condition 3.3.(1). INCOM-Leone will give written notice of the variation to the Buyer.
4.2 INCOM-Leone will be entitled to invoice the Buyer for the Prices for the Goods and any relevant insurance, carriage and delivery charges payable by the Buyer in addition to the Prices following delivery. Each invoice will be payable in full and without any set-off or any deduction or withholding by the Buyer in EURO in cleared funds within 30 days following the date on which the invoice is issued.
4.3 The price of the Goods shall be subject to the addition of Value Added Tax and other taxes (if any) and the cost of any special packaging required by the Buyer.
4.4 If INCOM-Leone does not receive payment from the Buyer by the due date it shall be entitled to suspend all further deliveries of Goods until payment is received and repudiate the Contract or to charge penal interest on the owed sum at the 12% rate of interest per annum.
4.5 The Buyer shall indemnify and hold INCOM-Leone harmless against all costs (including legal costs on a full indemnity basis) howsoever incurred by INCOM-Leone in the course of recovering any monies not paid by the Buyer for any reason on the due date.
5.1 INCOM-Leone will deliver the Goods to the location agreed by the parties in writing (the “Delivery Point”) by separate instalments. Delivery of the Goods will be accepted at any time of day. The Buyer will be responsible for off-loading the Goods at the Delivery Point.
5.2 INCOM-Leone will use reasonable endeavours to deliver each of the Buyer’s orders for the Goods within the time agreed, but the time of delivery will not be of the essence. If, despite those endeavours, INCOM-Leone is unable for any reason to fulfil any delivery or performance on the specified date, INCOM-Leone will be deemed not to be in breach of this Contract, nor (for the avoidance of doubt) will INCOM-Leone have any liability to the Buyer for direct, indirect or consequential loss howsoever caused (including as a result of negligence) by any delay or failure in delivery except as set out in this Condition. Any delay in delivery will not entitle the Buyer to cancel the order unless and until the Buyer has given five days’ written notice to INCOM-Leone requiring the delivery to be made and INCOM-Leone has not fulfilled the delivery within that period. If the Buyer cancels the order in accordance with this Condition 5.2 then INCOM-Leone will refund to the Buyer any sums which the Buyer has paid to INCOM-Leone in respect of that order or part of the order which has been cancelled; and
5.3 If the Goods are unable to be delivered due to any act or omission of the Buyer, the Goods will be deemed to have been delivered on the due date.
5.4 Unless otherwise agreed in writing by a duly authorised representative of INCOM-Leone the Goods shall be deemed to be delivered EXW at INCOM-Leone’s Premises.
5.5 INCOM-Leone shall have no liability for any claim in respect of any defect in the Goods which would be apparent on inspection at time of delivery.
6.1 In the event of any failure by INCOM-Leone to fulfil any delivery or performance on the date required by Condition 5.2 above, the remedies of the Buyer will be limited to damages.
6.2 All warranties, conditions and other terms implied by law (whether by statute, common law or otherwise) are excluded from the Contract. INCOM-Leone maximum aggregate liability arising out of or in connection with a Contract, whether in contract, tort, misrepresentation, under statute or otherwise, howsoever caused including by negligence and/or arising from a breach of, or a failure to perform INCOM-Leone or defect or delay in performance of, any of INCOM-Leone s obligations under the Contract and/or any defect in any of the Goods and/or any use made or resale of any of the Goods by the Buyer or of any product incorporating any of the Goods shall be limited to 150% of the aggregate Price paid or payable under the Contract.
6.3 INCOM-Leone shall have no liability to the Buyer for (1) any damage to or deterioration in any Goods arising from or in connection with any failure by or on behalf of the Buyer to follow instructions and/or good practices in relation to the storage, transportation and/or use of the Goods; (2) in each case whether direct or indirect (i) any loss of profit; (ii) loss of revenue, loss of production or loss of business; (iii) loss of goodwill, loss of reputation or loss of opportunity; (iv) loss of anticipated saving or loss of margin; (v) liability of the Buyer to third parties; or indirect, consequential or special loss, arising out of or in connection with a Contract, whether in contract, tort, misrepresentation, under statute or otherwise, howsoever caused including by negligence and/or arising from a breach of, or a failure to perform or defect or delay in performance of, any of INCOM-Leone obligations under the Contract.
6.4 Any claim by the Buyer which is based on any defect in the quality or condition of the Goods or their failure to correspond with specification shall be notified to INCOM-Leone within 72 hours from the date of delivery or (where the defect or failure was not apparent on reasonable inspection) within a reasonable time after discovery of the defect or failure and in any event before the expiration of the “use by” or “best before” dates applicable to such Goods. If delivery is not refused, and the Buyer does not notify INCOM-Leone accordingly, the Buyer shall not be entitled to reject the Goods and INCOM-Leone shall have no liability for such defect or failure, and the Buyer shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract.
6.5 In the case of any claim that the Goods are defective or otherwise fail to meet specification, at INCOM-Leone’s request, the Buyer shall by such means as INCOM-Leone may reasonably specify forward to INCOM-Leone a sample of the Goods in question together with details of the consignment in which the Goods were contained. In all such cases the Buyer shall immediately cease to use all similar Goods received under the same consignment and the Buyer shall immediately give to INCOM-Leone all facilities which it reasonably requires to check (where appropriate) that the Goods have been stored by the Buyer under the correct conditions and to check any tests or assessments of the Goods made or to be made by the Buyer.
6.6. Where any valid claim in respect of any of the Goods which is based on any defect in the quality or condition of the Goods or their failure to meet specification is notified to INCOM-Leone in accordance with these Conditions, INCOM-Leone shall be entitled to replace such Goods free of charge or, at INCOM-Leone’s sole discretion, credit the Buyer with the price of such Goods but INCOM-Leone shall have no further liability to the Buyer.
6.7 In default of compliance with the provisions of this Condition 6 all claims by the Buyer (other than claims arising from INCOM-Leone’s gross-negligence) are hereby expressly agreed to be barred and any damage suffered by any Goods shall be deemed to have occurred following delivery unless the contrary is proved by the Buyer to the reasonable satisfaction of INCOM-Leone.
6.8 Any claim by the Buyer that there has been no delivery or a shortfall in the quantity of the Goods delivered must be notified to INCOM-Leone within 24 hours from the date of delivery and if INCOM-Leone has failed to deliver all or part of the Buyer’s order for the Goods for any reason other than a cause beyond INCOM-Leone’s reasonable control or the Buyer’s fault INCOM-Leone shall be entitled at its sole discretion either to supply additional Goods to the Buyer to make up such shortfall, or credit the Buyer with the price of such Goods but INCOM-Leone shall have no further liability to the Buyer.
7.1 If the Buyer commits a material breach of the Contract which cannot be remedied; or commits a material breach of the Contract which can be remedied but fails to remedy that breach within 30 days of a written notice setting out the breach and requiring it to be remedied being given by INCOM-Leone, INCOM-Leone may terminate the Contract immediately by giving written notice to that effect to the Buyer. INCOM-Leone may terminate the Contract immediately by giving written notice to the Buyer if it becomes Insolvent.
7.2 Following expiry or termination of the Contract Conditions 1, 2, 4, 6, 7, 8, 9.3 and 10 will continue in force, together with any other Conditions which expressly or impliedly continue to have effect after expiry or termination of the Contract.
8.1 No right or licence is granted to the Buyer in respect of the Intellectual Property Rights of INCOM-Leone, except the right to use, or re-sell the Goods in the Buyer’s ordinary course of business. The Buyer will not without the prior consent from INCOM-Leone allow any trademarks of INCOM-Leone or other words or marks applied to the Goods to be obliterated, obscured or omitted nor add any additional marks or words.
8.2 The Buyer will indemnify, keep indemnified and hold harmless INCOM-Leone from and against any costs, expenses, liabilities, losses and damages incurred by INCOM-Leone in connection with any claim by any third party that the use by INCOM-Leone of any recipes, designs, branding or materials of any kind supplied by the Buyer infringes the Intellectual Property Rights of that third party.
8.3 The Buyer will keep all INCOM-Leone confidential information (including information relating to the Prices) secret, confidential and at least as safe and secure as it would keep its own confidential information.
8.4 If any term of the Contract is found by any court or body or authority of competent jurisdiction to be illegal, unlawful, void or unenforceable, such term will be deemed to be severed from the Contract and this will not affect the remainder of the Contract which will continue in full force and effect.
8.5 A delay in exercising or failure to exercise a right or remedy under or in connection with the Contract will not constitute a waiver of, or prevent or restrict future exercise of, that or any other right or remedy, nor will the single or partial exercise of a right or remedy prevent or restrict the further exercise of that or any other right or remedy. A waiver of any right, remedy, breach or default will only be valid if it is in writing and signed by the party giving it and only in the circumstances and for the purpose for which it was given and will not constitute a waiver of any other right, remedy, breach or default.
8.6 The Contract constitutes the entire agreement between the parties and supersedes any prior agreement or arrangement in respect of its subject matter and:
8.7 Any notice or other communication required to be given to a party under or in connection with this contract shall be in writing and shall be sent by pre-paid registered post at its registered office.
8.8 The Contract and any non-contractual obligations arising out of or in connection with it will be governed by Slovene law. Each party agrees that the courts of Republic of Slovenia have exclusive jurisdiction to determine any dispute arising out of or in connection with the Contract (including in relation to any non-contractual obligations).