These General Terms and Conditions (hereinafter referred to as the “Terms and Conditions”) are terms and conditions for the supply of goods and services issued and applied by Moctezuma Foods s.r.o., with its registered office at Tiskařská 599/12, Malešice, 108 00 Prague 10, Czech Republic, ID No. (IČ) 050 33 543, entered in the Commercial Register maintained by the Municipal Court in Prague, Section C, Insert 257227.
These Terms and Conditions do not apply to the supply of goods to consumer as a natural person who at the conclusion of the Purchase Agreement with the Moctezuma Foods s.r.o. is not in his commercial or other business activity or within independent exercise of their profession.
1.1. For the purposes of these Terms and Conditions, unless otherwise stated below or as the context requires, the following terms, when prefixed with a capital letter, have the following meanings:
“Business Day” means a day on which banks in the Czech Republic are open to the public;
“Civil Code” means the Czech Act No. 89/2012 Coll., the Civil Code, as amended;
“Contract Documentation” means the applicable Purchase Agreement, including its proposal, i.e., the Order, concluded Purchase Agreement and these Terms and Conditions, and any storing and transportation instructions provided by the Supplier on the labelling of the Products or as a part of their presentation or within their delivery;
“Customer” means an entrepreneur entering into a contractual relationship with the Supplier, in accordance with these Terms and Conditions as defined below;
“Order” means an order of a Product made by the Customer, as the buyer, in writing or electronically to the Supplier, as the seller; the Order is also a draft Purchase Agreement;
“Parties” means jointly or individually the Customer and the Supplier;
“Product(s)” means the goods sold by the Supplier to the Customer under the conditions set out in the Purchase Agreement and these Terms and Conditions;
“Purchase Agreement” means any individual Purchase Agreement concluded between the Parties whose subject matter is the sale of the Product by the Supplier to the Customer;
“Supplier” means Moctezuma Foods s.r.o., with its registered office at Tiskařská 599/12, Malešice, 108 00 Prague 10, Czech Republic, ID No. (IČ) 050 33 543, entered in the Commercial Register maintained by the Municipal Court in Prague, Section C, Insert 257227; and
“VAT” means value added tax.
1.2. Unless expressly stated otherwise or as the context requires, the above terms retain their initial meaning when used with a capital letter and / or in plural or singular where appropriate, when used in any part of the Contract Documentation, and must therefore be used within the meaning of the above meaning, and references to the Articles in these Terms and Conditions shall mean references to the Articles of these Terms and Conditions.
1.3. Where the Contract Documentation specifies terms or dates by the number of days, months and years, it is meant calendar days, months and years, unless explicitly stated otherwise.
1.4. The Supplier is obliged to inform contractors about changes to these Terms and Conditions by publishing their wording on its website https://moctezumafoods.eu.
1.5. Specific arrangements in the Purchase Agreement prevail over the provisions of the Terms and Conditions.
2.1. The Supplier shall sell the Products to the Customer in accordance with the Contract Documentation, the Purchase Agreement and these Terms and Conditions.
2.2. The Customer undertakes to pay the purchase price for the Products in accordance with the Contract Documentation, the Purchase Agreement and these Terms and Conditions, and to dispose of, store and transport the Products in line with their labelling and storing and transportation instructions provided by the Supplier.
3.1. The Customer shall issue and send a written Order to the Supplier at the latest ten (10) Business Days before the required date of delivery of the Product. The Supplier is not obliged to accept the Order received later.
3.2. The Customer’s Order shall always include:
a) identification of the required Product(s);
b) the Customer’s identification, the Customer’s contact person, including their e-mail address;
c) the quantity and price of the Product(s) purchased;
d)the requested date of handover/delivery; and
e)other information relevant to the respective Order.
3.3. The Supplier shall send a signed or otherwise demonstrably confirmed Order to the Customer within the following five (5) Business Days after its receipt. The confirmation of Order shall include a calculation of the purchase price for the Product(s) and the reference to these Terms and Conditions and their binding nature for the Order and the subsequent Purchase Agreement. On the day of delivery of the confirmed Order, to the Purchase Agreement will be concluded, but no later than on the day on which one can reasonably expect the performance or on which the Supplier performs the Order.
4.1. The price of the Products stipulated in the Contract Documentation does not include any additional packaging, transportation and insurance of the Products until the Products are handed over to the Customer.
4.2. The packaging and transport of the Products is arranged by one of the Parties in accordance with the Contract Documentation. The relevant Party is responsible for the proper packaging and transportation of the Products pursuant to these Terms and Conditions. For avoidance of any doubt Parties agreed, that if the Customer asks for his own transportation company, or otherwise arranges the transport of the Products, the Supplier is not responsible for the Products during their transportation.
4.3. The packaging in which the Product is transported, and the Product designation must comply with the requirements, legal regulations, agreed terms or conditions of the original producer and / or the Supplier and must guarantee the protection of the Product(s) during transportation and storage throughout its useful life in line with the applicable legal regulations. The relevant Party must be able to demonstrate compliance with these requirements at any time.
4.4. The Products must always be packaged, transported and labelled in full compliance with the Contract Documentation, the Purchase Agreement and these Terms and Conditions as well as any legal regulations governing the Products; in the case of materials, components, constituents, ingredients and raw materials used in the manufacture of Products.
5.1. The Product shall be handed over by the Supplier and accepted by the Customer based on the delivery note of the Product bearing the signature of the responsible employee of the Customer. By signing the delivery note, the Customer agrees to accept the Product and confirms that they have handed over in the correct number of pieces and mechanically undamaged. The Supplier is not responsible for the delivery time of the Products.
5.2. The risks of loss, destruction or damage to the Products shall be transferred to the Customer upon the due handover of the Products to the Customer.
5.3. The costs of the transport of the Products to the place of delivery are not included in the price of the Products stipulated in the Contract Documentation and shall be paid by the Customer, unless otherwise expressly agreed in the Purchase Agreement. These costs may be variable depending on the price lists of the service provider (e.g. logistics company). The Customer shall pay the costs of the transport including all related costs on the basis of the Supplier’s invoice.
5.4. The delivery condition for the Product(s) is DAP (Incoterms 2020) the agreed place of delivery, unless otherwise agreed in writing in the Purchase Agreement.
6.1. The Customer is obliged to duly and timely pay to the Supplier the purchase price of the Product(s) in the amount specified in the Purchase Agreement in the manner and under the conditions set forth in these Terms and Conditions.
6.2. Unless otherwise stated in the Contract Documentation, the prices quoted therein shall be deemed not to include VAT.
7.1. The Supplier is entitled to issue an invoice charging the price of the Product on the day of confirmation of the Order.
7.2. In addition to the requirements of a tax document pursuant to the Act on VAT and the requirements of a commercial document pursuant to Section 435 of the Civil Code (and other applicable generally binding legal regulations), the issued invoice shall contain:
a) Customer’s order number;
b) identification of the Purchase Agreement or the Order on the basis of which the performance was provided;
c) invoice number and due date; and
d)the amount of advance, if any.
7.3. The invoice can be issued and delivered to the Customer electronically.
7.4. The invoice is due after the 14-day maturity period, which starts to run from delivery of the invoice to the Customer. The Customer shall pay the purchase price in the form of a bank transfer to the account number stated on the Supplier’s invoice.
7.5. In the event of the invoice containing incorrect requisites or some of them are missing, the Customer is entitled to return the invoice to the Supplier by the due date. In such case, the Supplier shall issue a new invoice and provide the Customer with a new due date in accordance with the provisions of Article 7.4. of these Terms and Conditions.
8.1. The Customer represents and undertakes that he owns valid licenses, authorisations and certificates that are required for implementation of all the activities arising from the Contract Documentation, esp. for the purchase, storage and sale of food products.
8.2. The quality of the Product supplied by the Supplier must correspond to the required quality according to the valid Product specification contained in the Contract Documentation or according to the relevant legal regulations.
8.3. From the time of the handover of the Products until their sale to the final consumer, the Customer is solely responsible for quality, storage and handling of the Product(s) and must ensure that Products are health safe when placed on the market by:
a) placing the Products in premises and under conditions that preserve their quality and safety;
b) meeting hygiene requirements during the packaging, transportation and storage of the Products;
c) using appropriate materials when handling with the Products; and
d) reducing the potential for contamination of the Products.
8.4. In marketing activities related to the introduction of the Products to the market, the Customer is obliged to comply with the legal requirements for the content and form of such activities set out in the legislation on advertising regulation, consumer protection and competition protection.
8.5. The Customer is aware that the purchase of Products does not constitute a right to use registered trademarks, trade names, company logos or patents of Supplier, and is obliged to refrain from using them, unless the Purchase Agreement stipulates otherwise.
9.1. If any breach of the obligations arising from generally binding legal regulations, the Contract Documentation or these Terms and Conditions results in any material or immaterial harm to the other Party or third parties as a result of the usage or use of the Products, the breaching Party is obliged to compensate the damages. The provisions of the preceding sentence shall apply even after the termination of the Purchase Agreement in any way, including the withdrawal by either Party or both Parties.
9.2. Defect means deviation from the quantity, type or qualitative properties of the Product as set out in the Purchase Agreement, Terms and Conditions or generally binding legal regulations.
9.3. The Supplier declares and warrants to the Customer that at the time of hand over to the Customer:
a) Products comply with the agreed specification and quality and safety; the Supplier warrants that the Products are manufactured in accordance with applicable generally binding regulations, standards and requirements of food law;
b) the documents handed over to the Customer are complete;
c) the Supplier is the sole owner of the Products and the Products are not encumbered with any lien, option, service or other right of a third party, including industrial property rights;
d) the Supplier has all necessary authorizations to distribute and sell Products;
e) the Products will retain all their relevant properties, agreed quality, and will be fit for use for use-by date of the Product as indicated on the labelling unless otherwise agreed by the Parties in writing, provided that the Customer ensures storage and other handling of the Products in compliance with the Contract Documentation, the Purchase Agreement and these Terms and Conditions as well as the labelling of the Product(s) and any legal regulations governing the storage and handling of the Product(s).
9.4. The Customer is obliged to notify the Supplier of any defect of the Product(s) in writing within five (5) Business Days from the day when the defect was discovered and such notification must be accompanied with the documentation and evidence proving that the Customer ensured storage and other handling of the Product(s) in compliance with the Contract Documentation, the Purchase Agreement and these Terms and Conditions as well as the labelling of the Product(s) and any legal regulations governing the storage and handling of the Product(s). The Customer shall also state the alleged defect (or defects) and whether it is a material or insignificant breach of the Purchase Agreement and which of the possible claims arising from the defect of the Products they choose.
9.5. In case it is not possible to resolve a dispute over the quality of the Product or its conformity with the specification contained in the Contract Documentation by agreement, the Supplier and the Customer undertake to submit the Product for analysis to an independent expert from the relevant field selected from the list of experts and expert institutes administered by Czech courts on whom both parties agree. If there is no agreement on the selection of the independent expert within seven (7) days from the date of the first proposal of an independent expert, the Supplier shall appoint the independent expert. The findings of the independent expert shall be binding on both Parties, and the costs of the analysis shall be borne by the Party whose claim regarding the quality of the Product (or its compliance with the specification contained in the Contract Documentation) was not true. The Customer is obliged to provide the Supplier with the maximum possible cooperation in solving this matter.
9.6. If the defective performance constitutes a material breach of the Purchase Agreement, the Customer has the right to choose:
a) to remove the defect of the Product by delivering a new Product without defect or by delivering the missing Product;
b) a reasonable discount on the purchase price; or
c) to withdraw from the Purchase Agreement.
9.7. In the event of the Customer does not request something else when notifying the Supplier of any material defects (or defects), the Supplier is obliged to remedy the defects complained of within fifteen (15) Business Days at the latest after being notified by removing the defect (defects) at its own cost, and if the Supplier fails to do so to the full extent, the Customer has the right to demand a reasonable discount on the purchase price for the Products, or may withdraw from the Purchase Agreement, or to remove the defect or defects himself or through a third party at the expense and risk of the Supplier.
9.8. If the defective performance is an insignificant breach of the Purchase Agreement, the Customer has the right to choose:
a) to remedy the defect of the Product by delivering a new Product without defect or by delivering the missing Product; or
b) a reasonable discount on the purchase price.
9.9. If the defect constituting an insignificant breach of the Purchase Agreement is not remedied by the Supplier within ten (10) days after being notified by the Customer, the Customer shall be entitled to claim a discount on the purchase price or remedy the defect(s) himself or through a third party or withdraw from this Purchase Agreement.
10.1. The Customer in default of payment of the purchase price for the delivered Product shall be obliged to pay to the Supplier default interest in the agreed amount of 0.05 % for each day of delay on the outstanding amount of properly issued and delivered invoice.
10.2. The contractual penalty shall be notified and delivered to the other Party in writing. The amount of the contractual penalty and its justification must be included in the notification. The contractual penalty shall be paid within ten (10) days after the written request for payment has been delivered to the infringing Party.
10.3. The obligation to pay a contractual penalty does not affect the right of the relevant Party to compensation in full for material and non-material damage. The obligation to pay a contractual penalty may also arise repeatedly and the total amount of penalty is not limited. The obligation to pay the contractual penalty shall continue even after the termination of the duration of the Purchase Agreement as well as after withdrawal of either Party or both Parties.
11.1. The contractual relationship established by the Purchase Agreement may be terminated by a written agreement of the Parties or by a written withdrawal of either Party in the event of a material breach of the Purchase Agreement by the other Party or in cases foreseen by these Terms and Conditions or generally binding legal regulations.
11.2. In particular, the following shall be deemed a material breach of the Purchase Agreement:
a) Customer’s default in payment exceeding one (1) month;
b) Supplier’s delay in delivery more than sixty (60) days; or
c) the Customer is in breach of the obligations specified in Article 8. of these Terms and Conditions.
11.3. In the written withdrawal from the Purchase Agreement, the withdrawing Party shall state the reason for withdrawal from the Purchase Agreement. The withdrawal of the Party cancels the Purchase Agreement from its beginning and is effective as of the moment of delivery of the notice of withdrawal to the other Party.
11.4. Withdrawal from the Purchase Agreement shall not affect the right of either Party to the contractual penalty, damages and default interest due to the breach of the Purchase Agreement, or any other provisions which, according to the expressed will of the Parties or due to their nature shall continue to be effective after the termination of the Purchase Agreement.
12.1. Any notice or other communication to be made pursuant to or in connection with the Contract Documentation must be made in writing:
a) registered letter with acknowledgement of receipt; the date of delivery is the date indicated as the date of receipt on the delivery receipt;
b) by e-mail; the date of delivery is the moment of dispatch, provided that it was sent to the address which the Customer and the Supplier used for communication; or
c) delivery to the Customer’s or Supplier’s data box according to applicable legal regulations.
d) If a notice received in accordance with the provisions of this Article is delivered on a day other than a Business Day, such notice shall be deemed to have been received on the first following Business Day for the purposes of the respective agreement.
13.1. All data and information communicated by the Parties when negotiating or in connection with the Contract Documentation is considered confidential within the meaning of Section 1730 of the Civil Code, and neither of the Parties may share it or disclose it to a third party, nor use it for their own use, otherwise the Party who unlawfully used the confidential data in violation of this provision or legislation is obliged to compensate for the resulting damage and is obliged to release the unlawfully gained profit.
13.2. The Parties undertake not to disclose, transmit, or otherwise make available the contents of the Contract Documentation (except these Terms and Conditions) to third parties and to maintain the confidentiality of all facts relating to this Agreement or the interests of the other Party. This confidentiality obligation shall not apply where:
a) the fact in question is or has become publicly known by means other than unauthorized disclosure in breach of this confidentiality arrangement;
b) the information shall be communicated to the auditors or expert advisers of the Party if such advisors are bound by the obligation of confidentiality to at least the same extent;
c) the other Party shall give its prior written consent, which shall not be unreasonably withheld; or
d) disclosure of the facts is imposed on the Party by a decision of a court or other public authority.
14.1. The Customer declares that:
a) it is not aware that the Supplier would abuse its economic position when negotiating the Contractual Documentation;
b) it considers the mutual rights and obligations agreed in the Contract Documentation to be balanced;
c) it had the opportunity to obtain qualified legal assistance in negotiating the Contract Documentation; and
d) it does not conclude the contractual documentation in distress, inexperienced or carelessly.
14.2 The Customer expressly declares that it assumes the risk of changing circumstances in accordance with the provisions of Section 1765 (2) of the Civil Code.
14.3. The rights and obligations of the Parties, which are not expressly regulated by the Contractual Documentation, are governed by the Civil Code.
14.4. Unless otherwise expressly stated above, all actions to change or terminate the Contractual Documentation must be made in writing and delivered by registered letter, or by letter delivered by the courier service, to the address of the other Party stated in the contract header. Any Party is obliged to notify the other Party without undue delay of a change of delivery address or other contact details.
14.5. The Parties agree that the Customer is not entitled to assign and/or pledge to any third party, in whole or in part, any receivables, rights and/or obligations arising out of or in connection with the Contractual Documentation without the prior written consent of the Supplier.
14.6. The Parties agree that the Customer is not entitled to assign as an assignor any rights and/or obligations arising from the Contract Documentation or any part thereof to a third party without the Customer’s consent for the entire duration of the Supplier.
14.7. The Parties agree that the Customer is not entitled to unilaterally set off any of its claims against the Supplier arising from the Contractual Documentation against the claims of the Customer against the Customer.
14.8. The Parties agree that the Supplier is entitled to unilaterally set off any of their due and unpaid claims from the Customer arising from the Contractual Documentation against the Customer’s claims against the Supplier, even against claims that are not due.
14.9. Both Parties agree that any disputes shall be settled by mutual agreement as a matter of priority. Any disputes that could arise from the Purchase Agreement or in connection therewith or in connection with the Contract Documentation shall be settled by the competent courts of the Czech Republic, whose territorial jurisdiction will be determined according to the Supplier’s registered office.
15.1. If any provision of the Contract Documentation that is not an essential part of it, is or becomes invalid, ineffective or unenforceable or apparent, or if it contains an inaccuracy, uncertainty or formal deficiency, such provision is fully separable from other provisions of the Contract Documentation and its invalidity, ineffectiveness, unenforceability or appearances shall have no effect on the existence, validity, effectiveness and enforceability of the Contract Documentation as a whole or any other provision thereof. The Parties undertake to replace such invalid, ineffective, apparent or unenforceable provision with a new valid, effective and enforceable provision which, in its content, will correspond as closely as possible to the substance and purpose of the relevant original provision of the Contract Documentation.
15.2. The termination of the Contract Documentation does not affect the effectiveness of those provisions of the Contract Documentation that are intended to persist until the settlement of all claims arising from the Contract Documentation.
15.3. These Terms and Conditions come into effect on the day indicated at the end of these Terms and Conditions. These Terms and Conditions shall cease to be effective upon the publication of new General Terms and Conditions by the Supplier.
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Date of issue: 1 May 2022
Date of issue: 1 May 2022
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