GENERAL TERMS AND CONDITIONS
All orders of goods or services by the buyer will be subject to these general terms and conditions.
1. The essential nature of the General terms and conditions – These general terms and conditions will supersede previously applicable general sales terms and be of the essence in respect of our contract relations. These conditions will apply notwithstanding any other clause or condition providing otherwise, even if the buyer fails to return to us such sales agreement as was previously sent to the buyer within 10 days from the date of delivery thereof. Any failure from the seller to apply any of these terms against the buyer at any given time may not be construed as a waiver to apply the same in the future.
2. Price – Applicable prices are those existing upon the date of the order plus VAT at such rate as may be applicable. Price cuts as subject to the satisfaction of conditions, and in particular quantitative objective refunds will only be finally vested if all conditions for their award have been met: payment of such refunds will be subject to the express condition that settlement of all invoices for which sums fall in line with the base of the turnover used as a basis to ensure satisfaction of the condition to benefit from the refund has been made upon due dates as determined, without limitation. If those conditions are not fulfilled the seller shall have the right to demand the repayment of any anticipated refund. In case of insolvency, proceedings, administration, or liquidation any right to a price cut will be withdrawn.
3. Contract making – Orders or order confirmations from the buyer as received by the seller will only become final and binding upon the seller where they have been accepted by the seller and where the seller has sent to the buyer a contract of sale or order confirmation in writing. Any modification or cancellation of an order by the buyer will only be taken into account by the seller without any commitment to accept if received in writing before the shipment date of the goods or the beginning of provision of services, which is expressly accepted by the buyer.
4. Shipment – Delivery – Return – Save as may be stipulated otherwise, goods will travel at the recipient’s own risk and sales will be made on the basis of EXW, ICC INCOTERMS applicable when the contract was entered into. In case of goods missing, damages or delays noted upon delivery, the buyer should exercise its remedies and file claims against the carrier in compliance with such terms as provided by Obligations Code. Delays may not result in penalties for late fulfillment of an obligation, deductions, or damages, nor provide reasonable cause for any rejection or cancellation of the current order, whatever the causes, duration or effects of such delays. In case of non-conformity of goods delivered against goods ordered, the buyer should give notice thereof to the seller within not later than 5 days from the date of said delivery, without prejudice to any arrangements to be made with respect to the carrier. The buyer will be responsible for providing evidence as to the reality of abnormalities and defects noted. Any returnable handling support will remain the property of the seller and should be kept in a state of good repair. Each non-returnable support should be exchanged for another without prejudice to any invoice from the seller in case of a negative balance. The buyer undertakes to strictly comply with conditions of storage and preservation of products as stipulated in the seller’s technical sheets following the recommendations of the International Dairy Food Association applicable at the time when the order was placed.
5. Non-conformity -Return – Any return of products that fail to comply with the order should be subject to a prior written agreement from the seller. Any product returned without this agreement will not be accepted and may not give rise to any credit note whatsoever. The buyer will be responsible for expenses and risks in respect of the return. After the quantity and quality of returned products have been checked in agreement with the seller, in case of an apparent defect or non-conformity of products delivered to the buyer, the seller will either replace them free of charge or repay them, but will not pay any compensation or damages. Unsold goods or products for which the optimum sell-by dates have been reached cannot be taken back.
6. Quality – The seller guarantees that the quality and composition of its products are in compliance with the existing standards and regulations as determined by EU and Slovenian regulations.
7. Payment terms – Save as may be agreed otherwise and subject to regulated payment terms, our invoices will be payable in cash, upon delivery of the goods or provision of the services. In case of payment in installments, failure to pay any installment will automatically result in an event of default and all monies will become payable forthwith, even if they are not due yet and/or are related to other orders or contracts. Besides and without prejudice to any other action, failing payment within such time scale as mentioned above, the buyer will be liable to default interest rate for late payment amounting to a sum equivalent to the application of monies due exclusive of tax at an interest rate of three-fold the statutory default interest rate. Furthermore, a delay in payment will give rise to the payment of a EUR40 lump sum for late payment recovering fees. The seller will also reserve the option of setting off the penalties for late payment against any price cuts, refunds, and/or credit that might have been granted to the buyer. Any interest for late payment as may be charged to the buyer will not be taken into account in the calculation of the refund. The seller will also reserve the option of considering the order as terminated, fully in accordance with the law, if the buyer fails to fulfill any of its obligations, provided the seller sent a formal notice by registered mail, return receipt requested, which failed to produce any effects for 48 hours. In case of prompt payment by the buyer, the prompt payment discount will be calculated based on a rate as displayed on the invoice. Disputes relating to any delivery or invoice will not suspend payments in any case whatsoever. Any deterioration in the buyer’s credit may provide reasonable cause for the determination of a limit to the buyer’s overdraft, the requirement of certain payment terms, or other guarantees, at any time, depending on risks incurred. The seller reserves the right to refuse to handle the order if such guarantees should not be secured.
8. RESERVATION OF TITLE -IT IS UNRESERVEDLY STIPULATED AND AGREED BY THE BUYER THAT THE SELLER WILL RETAIN TITLE TO PRODUCTS DELIVERED UNTIL THE PRICE THEREOF HAS BEEN PAID IN FULL, IN PRINCIPAL AND INCIDENTAL EXPENSES. THE BUYER WILL EXEMPT THE SELLER FROM MENTIONING THIS TITLE RETENTION CLAUSE IN ANY OTHER DOCUMENT. NOTWITHSTANDING THIS RESERVATION OF TITLE PROVISION, RISKS ON THE GOODS PASS TO THE BUYER FROM THE DELIVERY DATE ON. THE BUYER SHALL MONITOR THE GOODS WITH THE UTMOST CARE UNTIL FULL PAYMENT. GOODS DELIVERED AND FOR WHICH PRINCIPAL AND INCIDENTAL EXPENSES HAVE NOT BEEN PAID IN FULL YET SHOULD THEREFORE BE DIFFERENTIATED IN THE BUYER’S INVENTORIES. OTHERWISE, GOODS IN STOCK ON THE PREMISES OF THE BUYER OR ITS REPRESENTATIVE WILL BE DEEMED TO BE THOSE DUE. IN CASE OF INCORPORATION OF NEW MATERIALS INTO GOODS DELIVERED, THE SELLER WILL BE THE CO-OWNER THEREOF UP TO THEIR INITIAL VALUE. A LACK OF PAYMENT, APART FROM PROVIDING TO THE WITHHOLDING OF ANY FUTURE DELIVERY, WILL ALLOW THE SELLER TO RESERVE THE RIGHT TO RETRIEVE ANY ALREADY DELIVERED GOODS AT COSTS AND EXPENSES OF THE BUYER. THE BUYER MAY NOT PLEDGE, EXCHANGE, OR TRANSFER TITLE TO THE GOODS AS GUARANTEE AND SHALL GIVE NOTICE TO THE SELLER IN CASE OF ATTACHMENT OR ANY OTHER ACTION FROM A THIRD PARTY UNTIL THE PRICE HAS BEEN PAID IN FULL IN PRINCIPAL AND INCIDENTAL EXPENSES; HOWEVER, AS PART OF THE ONGOING PERFORMANCE OF ITS BUSINESS, THE BUYER MAY RESELL THE PRODUCTS FOR THE ACCOUNT OF THE SELLER AND SHALL IRREVOCABLY ASSIGN TO THE SELLER ITS OWN ACCOUNTS RECEIVABLE IN PROPORTION TO ITS OWN DEBT TO THE SELLER, SAVE IN CASE THE SELLER SHOULD BE PAID IMMEDIATELY. DEPOSITS MAY BE KEPT TO COVER ANY LOSSES AND COSTS RESULTING FROM THE RECOVERY OF GOODS WITHOUT PREJUDICE TO ANY OTHER DAMAGES.
9. Force majeure – The seller will be released from any obligation to deliver in case of an event of force majeure, and the buyer waives any claim thereof. It shall be presumed that a force majeure occured in case of the occurrence of one or more of the following impediments: [a]war (whether declared or not), armed conflict or the serious threat of same (including but not limited to hostile attack, blockade; military embargo), hostilities, invasion, act of a foreign enemy, extensive military mobilisation; [b] civil war, riot rebellion and revolution, military or usurped power, insurrection, civil commotion or disorder, mob violence, act of civil disobedience; [c] act of terrorism, or threat thereof, sabotage or piracy; [d] act of authority whether lawful or unlawful, any failure by a authority to act as expected in the normal course of time, compliance with any law or governmental order, rule, regulation or direction, local and national greenhouse gas regulations as well as international treaty climate change legislation, curfew restriction, expropriation, compulsory acquisition, seizure of works, requisition, nationalisation; [e] act of God, plague, epidemic, or quarantine, natural disaster such as but not limited to atmospheric disturbance, violent storm, cyclone, typhoon, hurricane, tornado, blizzard, earthquake, volcanic activity, landslide, tidal wave, tsunami, flood, damage or destruction by lightning, drought;[f] explosion, fire, destruction of machines, equipment, factories and of any kind of installation, prolonged break-down of transport, telecommunication or electric current; [g] general labour disturbance such as but not limited to boycott, strike and lock-out, go-slow, occupation of factories and premises.
10. Jurisdiction and applicable law – Any dispute arising from the validity, interpretation, or performance of these general terms and conditions or any contract entered into between the seller and the buyer and therefore from any order or obligation hereunder is to be referred to the commercial court of Ljubljana which will have sole jurisdiction, even in case of any matter of special urgency, incidental claim or in case there should be more than one defendant, it being understood that any objection to the validity of any provision hereof will have no effect on these general terms and conditions as a whole. Laws applicable to these general terms and conditions will be the laws of Slovenia.
Hermes Consilium Ltd.
Cesta v Mestni log 88a