- Without prejudice to the applicability of any special terms and conditions, which take precedence over the present general terms and conditions, the present general terms and conditions form an integral part of the trade relations of J. Cortès Cigars NV, incorporated and existing under the laws of Belgium, having its registered office at 8552 Moen (Belgium), Pannenbakkersstraat 1, and registered with the Belgian Crossroads Bank for Enterprises under number 0405.450.102, (RPR/RPM Ghent, division Kortrijk), (“J. Cortès Cigars”), and therefore (without limiting the generality of the foregoing) all sales, offers and agreements of J. Cortès Cigars NV, as the seller, with the purchaser (the “Purchaser”) shall be subject to the terms and conditions set forth herein, as amended from time to time by J. Cortès Cigars, (the “General Sales Conditions”), to the exclusion of all other general terms and conditions, including these of the Purchaser. The Purchaser’s placing of an order, the Purchaser’s acceptance of product(s) (in whole or in part), the Purchaser’s signature, J. Cortès Cigars’ commencement of performance hereunder, and/or the Purchaser’s failure of any objection to an invoice, constitute the Purchaser’s acceptance of these General Sales Conditions and the Purchaser’s explicit and irrevocable renunciation of any of his own general terms and conditions, when and in whatever form communicated. In any case, these General Sales Conditions shall always prevail over any general terms and conditions of the Purchaser. These General Sales Conditions can only be deviated from if and insofar as the competent representative(s) of J. Cortès Cigars have expressly accepted this in writing.
- Whenever possible, the provisions of these General Sales Conditions shall be interpreted so as to be valid and enforceable under applicable law. However if at any time one or more provisions of these General Sales Conditions is found to be invalid, illegal or unenforceable (in whole or in part), the remainder of the provision and of these General Sales Conditions shall not be affected and shall continue in full force and effect as if the invalid, illegal or unenforceable provision(s) (or part(s) thereof) had never existed. Moreover, in this case, J. Cortès Cigars and the Purchaser shall amend the invalid, illegal or unenforceable provision(s) or any part thereof and/or agree on a new provision which embodies as closely as possible the purpose of the invalid, illegal or unenforceable provision(s) (or part(s) thereof).
- The information contained in J. Cortès Cigars’ brochures and documentation can be amended by J. Cortès Cigars, and does not constitute an offer.
- Every offer from J. Cortès Cigars is without obligation, unless the offer expressly stipulates that it is binding for a certain term, in which case J. Cortès Cigars shall still be entitled to withdraw this offer at any time for as long as the Purchaser has not expressly accepted the offer.
- Purchaser must place an order in writing and hereby binds him in this regard. J. Cortès Cigars is only bound after it has expressly confirmed the order explicitly and in writing.
- Upon cancellation of an order by the Purchaser, J. Cortès Cigars can opt for either full enforcement of the order, or the dissolution thereof, without prior judicial intervention or further notice, with an additional penalty payable by the Purchaser and amounting to 10% of the agreed price (excluding VAT). This is without prejudice to the right of J. Cortès Cigars to claim additional compensation if the actual damage incurred is higher.
- The price due for the products is as set out in J. Cortès Cigars' order confirmation.
- If the prices of one or more components of the products increases prior to the Delivery of the Products, J. Cortès Cigar’s shall be entitled to increase the price reflected in the order confirmation to the same extend as the prices of these components increased. The following shall (without limitation) be considered as such components: (i) raw material prices, (ii) transport and storage costs, packaging costs, (iii) wages and national insurance costs, (iv) taxes, charges, levies, import or export duties, (v) currency fluctuations and/or (vi) insurance premiums.
- Unless otherwise expressly stipulated in the order confirmation, the indicated price are exclusive of VAT and other government levies, and shall also be exclusive of any costs of insurance, transport and packaging.
- Unless expressly stipulated otherwise in the order confirmation, the products shall be delivered in accordance with the ICC Incoterms 2021 EXW. (the “Delivery”).
- J. Cortès Cigars reserves the right to carry out partial deliveries and invoicing, without the Purchaser being entitled to refuse them or to defer payment for this reason.
- The Delivery terms indicated are given for information only and are not binding for J. Cortès Cigars. If the forecasted delivery date is exceeded, this shall never be regarded as a default to perform by J. Cortès Cigars and does not give the Purchaser the right to terminate the agreement, except in case of deliberate action or serious misdemeanor on the part of J. Cortès Cigars. Postponement or non-delivery shall not constitute grounds for any entitlement to compensation to the Purchaser. Any delay in performance of which J. Cortès Cigars becomes aware will be brought to the attention of the Purchaser as soon as possible. Any changes to the order automatically result in the scheduled delivery date being amended.
- The risk of loss of or damage to the products is transferred from J. Cortès Cigars to the Purchaser at the time of the Delivery. The products remain however the property of J. Cortès Cigars until payment in full of the price for all products that have been delivered or that are deemed to have been delivered, including any accessories, such as any costs, interest and damages. Should the products be sold and delivered to a third party, then the right to the sale resulting from this shall be substituted for the sold products, this without prejudice to the right of priority of J. Cortès Cigars, which the latter shall be entitled to rely upon at its discretion, whereby the filing of the invoice with the registrar of the Commercial Court for this purpose cannot in any way be interpreted as an abandonment of one or more of aforesaid provisions.
- Unless agreed otherwise in writing, J. Cortès Cigars’ invoices are payable within thirty (30) calendar days from the invoice date, in the invoice currency, free of any currency control or other restrictions, at the registered office of J. Cortès Cigars, via wire transfer into an account designated in the invoice. All costs of payment shall be borne by the Purchaser.
- If the Purchaser fails to pay in full any invoice by the due date, J. Cortès Cigars shall then be automatically be entitled, without prior formal notice of default, and subject to retention of any other rights of recourse, on the basis of the agreement or the law, (a) to claim default interest on the overdue amount at the interest rate as provided by the Belgian Act of 2 August 2002 on combating late payment in commercial transactions, and (b) to 10% of the outstanding balance, with a minimum amount of EUR 250,00- as liquidated damages for costs associated with amongst other things the collection of the amounts due, without prejudice to the right of J. Cortès Cigars to claim additional compensation if the actual damage suffered is higher. Late, incomplete or non-payment of one expired invoice will cause all other amounts that the Purchaser may owe to J. Cortès Cigars to become immediately, automatically claimable, and without further formal notice of default. J. Cortès Cigars shall then automatically be entitled, without prior formal notice of default, suspend the execution of the agreement or any other agreement between J. Cortès Cigars and the Purchaser, including, but not limited to the Delivery of the products. A complaint of whatever nature cannot be invoked by the Purchaser as a reason for suspension or postponement of payment.
- In the event of the Purchaser failing to make any payment set forth in any invoice or otherwise agreed to by J. Cortès Cigars and the Purchaser or if he fails to meet his obligations in any way, J. Cortès Cigars reserves the right to cancel any orders not yet delivered, or suspend performance of those orders, on condition that he informs the Purchaser.
- The Purchaser shall immediately inspect the products upon Delivery. Complaints with regard to a non-compliant Delivery or visible defects must be made in writing by the Purchaser to J. Cortès Cigars, by e-mail, clearly stating the alleged defects, within twenty-four (24) hours of Delivery, and the products must not have been altered, all of the foregoing upon penalty of forfeiture. In the absence of such timely and proper notice, the Purchaser shall be deemed to have accepted such J. Cortès Cigars’ product. A complaint regarding invisible defects must be made in writing by the Purchaser to J. Cortès Cigars, by registered letter, with a clear description of the alleged defects, within fifteen (15) calendar days of the discovery of the defect and in any event within fifteen (15) calendar days of when the Purchaser should have discovered the defect, and in any event within six (6) months of the Delivery of the products at the latest, and the goods must not have been altered, all of the foregoing upon penalty of forfeiture. The Purchaser must immediately grant J. Cortès Cigars the opportunity to investigate a complaint by making a representative sample of the goods available to J. Cortès Cigars for inspection, this upon penalty of forfeiture of the right to rely upon a non-compliant delivery or a visible or invisible defect. Defective products may only be returned after receiving written consent from J. Cortès Cigars, and transport occurs at the Purchasers risk and expense. Any reaction by J. Cortès Cigars to late complaints shall not operate or be construed as a waiver (either express or implied, in whole or in part) of his rights under this article 17, or prelude the further exercise of any such rights, and is always without prejudice to any of its rights and without any prejudicial acknowledgement.
- Except for liability for personal injury or property damage arising from J. Cortès Cigars willful misconduct, J. Cortès Cigars shall not be liable to the Purchaser for loss of profits, indirect, incidental or consequential damages or losses (including, but not limited to: punitive or exemplary damages, losses incurred by third parties, loss of income, used based losses, loss of products, agreements, customers, goodwill, lost time, data, damage to a reputation, business interruption or stagnation or any claims from customers), for all causes of action of any kind (including tort, contract, negligence, strict liability and breach of warranty). Except for liability for personal injury or property damage arising from J. Cortès Cigar’s willful misconduct, the liability of J. Cortès Cigars shall in any event be limited to the agreed price (exclusive of VAT and costs) paid by the Purchaser for the products delivered by J. Cortès Cigars with regard to that for which J. Cortès Cigars is liable, for all causes of action of any kind of any kind (including tort, contract, negligence, strict liability and breach of warranty). J. Cortès Cigars accepts no liability for alleged shortcomings in the goods delivered by it if (a) the Purchaser has stored the products, in the opinion of J. Cortès Cigars, in unsuitable or unclean storage places, (b) the Purchaser does not uses the products for the purpose for which they are normally intended and/or (c) the Purchaser changes or replaces the products or a part of the products. Nothing in these General Sales Conditions shall limit and/or exclude J. Cortès Cigar’s liability for any liability which cannot be excluded or limited by law.
- J. Cortès Cigars guarantees exclusively that the products are conform to the prevailing specifications of J. Cortès Cigars at the time of Delivery. Other than this, J. Cortès Cigars provides no other express or implicit guarantee or obligation with regard to the sold products, including (without limiting the generality of the foregoing) any guarantee or obligation regarding merchantability, fitness or suitability for a specific use.
Without limiting the foregoing, J. Cortès Cigars neither assumes, nor authorizes any person to assume on its behalf, any other obligation in connection with the products or the sale of the products. The guarantee provided in this article 19 shall not apply to any products which: (i) have been modified or altered; (ii) have been subjected to misuse, negligence or accident; or (iii) have been used in a manner inconsistent with any instructions or recommendations of J. Cortès Cigars.
- The Purchaser shall defend, indemnify and hold J. Cortès Cigars harmless against any claims of his customers, based on whatever legal ground.
- Neither of the parties shall be liable for a delay or shortcoming in the execution of an Agreement, if this is attributable to force majeure. Force majeure is understood as any event or circumstance that could not reasonably have been prevented or foreseen or that goes beyond the reasonable control of the party affected, including / but not limited to, the impossibility to execute an agreement as a consequence of natural disasters, nuclear or chemical explosions, measures or prescriptions issued by an administrative authority or other organ of a government (such as embargoes, blockades, legal restrictions, insurrections, governmental orders, governmental regulations, accidents, prohibitions on transport, import, export or production), limited supply of raw materials on the market, changes of legislation with regard to obligatory stocks, disruption of the telecommunications networks, fires, floods, any type of strikes, default of suppliers, boycotts, (declared or undeclared) wars, armed conflicts, pandemics and epidemics, the non-availability of ships, trucks or other transport, riots, strikes, labour unrest or other industrial disturbances or lack of electricity supply. In the case of J. Cortès Cigars, force majeure shall also include circumstances whereby the extraction, processing and supply of raw materials is influenced to such an extent that execution of the agreement can only occur with a delay, partially or not at all. The party that relies on force majeure shall take all reasonable measures to overcome the temporary force majeure situation and immediately recommence the execution of the agreement after the force majeure situation ends, unless expressly agreed otherwise. If the force majeure situation endures for longer than sixty (60) calendar days, each of the parties shall have the right to terminate the agreement, without prior judicial intervention or further notice and without compensation being due by one of the parties.
- Each agreement, with the inclusion of these General Sales Conditions is governed by Belgian law, and no effect shall be given to any other choice-of-law or conflict-of-laws rules or provisions (Belgian, foreign or international, including the United Nations Convention on Contracts for the International Sale of Goods (1980) (“Vienna Convention”) (if applicable)), that would cause the laws of any jurisdiction other than Belgium to be applicable. Any dispute arising from or in connection with an agreement or these General Sales Conditions shall fall under the exclusive jurisdiction of the courts of the legal district in which J. Cortes Cigars’ registered office is established.
- The Parties acknowledge and declare that each article, or part thereof, of these General Sales Conditions is truly intended by them and that non of these clauses, or parts thereof, create any (apparent) imbalance between the rights and obligations of the parties.