Terms and Conditions - Fruity Line

GENERAL TERMS AND CONDITIONS OF PURCHASE OF FRUITY LINE

Terms and Conditions

Free translation into English of the GENERAL TERMS AND CONDITIONS OF PURCHASE OF FRUITY LINE in the event of discrepancies between the Dutch text of these GENERAL TERMS AND CONDITIONS OF PURCHASE OF FRUITY LINE and translations thereof, the Dutch text shall prevail.

Article 1 – Definitions

In these general terms and conditions of purchase and any contracts subject thereto, the following terms are defined as follows:

1.
Fruity Line: Fruity Line B.V., with registered office in Ochten, the Netherlands, and registered in the trade register of the Chamber of Commerce under number 30244500, as well as its legal successors and subsidiaries

2.
General Conditions: these general terms and conditions of purchase of Fruity Line

3.
Vendor: any natural person or legal entity that contracts with Fruity Line or that makes Fruity Line an offer, as well as such party’s representative(s), successor(s) in title and/or heir(s)

4.
Contract(s): any contracts between Fruity Line and the Vendor to which these General Conditions apply, any changes and additions thereto, as well as all juridical and other acts preparatory to or in performance of such contracts

5.
Products: the delivery of goods and/or the performance of work by the Vendor for Fruity Line

 

Article 2 – Scope

1.
These General Conditions apply to all offers, requests, orders and Contracts between Fruity Line and the Vendor (jointly referred to below as ‘the Parties’), whereby Fruity Line is the purchaser/client or prospective purchaser/client and the Vendor is the vendor/contractor or prospective vendor/contractor. These General Conditions also apply to any further or additional contracts between the Parties.

2.
Any departures from and additions to these General Conditions or the Contract are only binding on Fruity Line if such departures or additions have been explicitly agreed without reservation and in writing between the Parties. Any such departures or additions relate only to the specific Contract in question.

3.
Any general terms and conditions of the Vendor, howsoever described, do not apply.

4.
If any provision of these General Conditions should prove to be void or avoidable, whether or not through court intervention, only that provision shall be unenforceable. The Parties shall then negotiate a replacement provision, insofar as possible in observance of the purpose and scope of the void or avoided provision. All other provisions shall remain in full force.

 

Article 3 – Offer, prices and creation of the Contract

1.
All requests, orders and offers from Fruity Line or its representatives are entirely without obligation, unless stated otherwise.

2.
Any offer by the Vendor is not subject to contract and may be considered by Fruity Line as a binding offer. A Contract is created when Fruity Line accepts the Vendor’s offer in writing. In the absence of a preceding offer from the Vendor, a Contract is created when Fruity Line sends the Vendor confirmation of the order in writing.

3.
All Contracts are considered to have been created in the place where Fruity Line has its registered office, specifically Ochten, the Netherlands, both for the purposes of performance of the Contract and payment for the Contract.

4.
All amounts stated in offers, Contracts and instructions are in euros, unless the Parties agree otherwise in writing.

5.
The Vendor cannot increase any agreed price, even in the event of Vendor cost price increases, except with the express, written and prior consent of Fruity Line.

 

Article 4 – Delivery

1.
 Delivery is on the basis of the Incoterms (as applicable at the moment of creating the Contract) ‘Delivery Duty Paid’ at the address of Fruity Line: Cuneraweg 9, 4551 CE Ochten, the Netherlands, except where the Parties agree otherwise in writing, strictly at the agreed time or within the agreed period. Except where otherwise agreed, partial deliveries are not permitted. If a partial delivery is agreed, then for the applicability of these General Conditions the term ‘delivery’ is understood to include a partial delivery.

2.
All agreed delivery dates and terms are qualified as final deadlines, and by the simple fact of exceeding any such date/term the Vendor is automatically in breach of contract, with no notice of default being required.

3.
If the Vendor knows or should know that it will be unable to fulfil the delivery period it has committed to, it must inform Fruity Line thereof immediately in writing, stating reasons. If the Vendor fails to inform Fruity Line in writing in a timely manner or in doing so fails to state reasons, it cannot rely on force majeure.

4.
In the event of late delivery or failure to make delivery of a portion of the agreed deliverable, Fruity Line is authorised to return the portion already delivered at the expense and risk of the Vendor.

5.
In the event of late delivery or failure to make delivery of a portion of the agreed deliverable, Fruity Line is entitled to claim, in addition to damages, compensation of the extra costs it is forced to incur for reasonable replacement of the Products not delivered or not delivered in a timely manner by the Vendor.

6.
If the Parties have agreed that the Vendor will store the Products it delivers to Fruity Line, or arrange for such storage by a third party, delivery is deemed to have been effected at the moment that the Products are stored.

7.
If the Vendor does not deliver, does not deliver in full, or does not deliver in a sound manner at the agreed moment of delivery or within the agreed delivery period, then without any further notice of default the Vendor forfeits a penalty of 1% of the agreed purchase price per work week or portion of a work week that the delay continues, up to a maximum of 10% of the order value. This penalty is without prejudice to Fruity Line’s rights to claim damages, full performance, or both.

 

Article 5 – Packaging and shipping

1. The Vendor will package the Products as carefully as possible, such that the shipment can be handled during transport and unloading. The Vendor is responsible for ensuring that the Products reach their destination in good condition.

2. The Vendor is responsible for transport and must therefore ensure that the Products are transported in accordance with applicable laws and regulations. The carrier must be in possession of all required documents. Special packaging that is to be returned to the Vendor must be clearly marked as such.

 

Article 6 – Acceptance and complaints

1.
The Products to be delivered by the Vendor must comply with the agreed requirements, specifications, provisions of law and other governmental requirements, as well as all other requirements that Fruity Line sets on these products, in terms of both quality and quantity.

2.
The Vendor warrants that the Products:

     a. are of good quality and free of defects;

     b. (where the Product involves the performance of a service) are executed by professional personnel, using sound materials;

     c.  are entirely in accordance with the provisions of the Contract, the stipulated specifications and the reasonable expectations of Fruity Line in terms of the properties, quality and reliability of the Products;

d. are suitable for the purpose for which they are intended based on the nature of the Products or as evidenced by the order.

3.
Fruity Line is authorised to have the Products inspected and tested prior to the moment of delivery by persons it designates for the purpose. The Vendor must grant all necessary cooperation in this regard. The Vendor can derive no rights from any such inspection/test.

4.
Fruity Line is also authorised to have the Products inspected and tested within a period of ten business days after delivery in order to establish that the Products are in compliance with the Contract. If during this period Fruity Line establishes that the Products are not in compliance with the Contract in any respect whatsoever, Fruity Line is authorised to refuse acceptance of these Products. Any losses and costs associated therewith are payable by the Vendor.

5.
If the Products are rejected, Fruity Line shall inform the Vendor thereof immediately, and in that case Fruity Line is entitled, at its discretion, to:

a.
return the delivered Products at the Vendor’s expense, and require proper performance, which may or may not be in combination with a claim for compensation of losses;

b.
terminate the Contract in accordance with article 10 of these General Conditions;

c.
terminate part of the Contract and require performance of the remainder, which may or may not be in combination with a claim for compensation of losses;

d.
demand a price reduction, with the proviso that the Vendor may not unilaterally determine what price reduction is appropriate to the failings identified. The Parties must achieve consensus in writing in this regard.

6.
All costs relating to inspections and reinspections must be borne by the Vendor, with the exception of the costs of the compliance officers designated by Fruity Line.

 

Article 7 – Payment

1.
The price agreed is fixed, in euros, and exclusive of turnover tax. Invoices must provide identifying reference numbers matching the relevant orders. As long as this information is lacking, Fruity Line is entitled to suspend its payment obligation. Duplicate invoices must be identified as such.

2.
Fruity Line will pay the invoice within 60 days after receipt, so long as Fruity Line has approved the Products in full.

3.
The Vendor can derive no rights from the payment of the invoice; payment does not discharge the Vendor from any warranty obligation and/or obligation to pay damages.

4.
Fruity Line is authorised to offset its due and payable claims against the due and payable claims of the Vendor.

5.
The Vendor is not authorised to suspend any obligation towards Fruity Line or to set off its claims against the claims of Fruity Line.

 

Article 8 – Ownership

1.
The ownership of the Products to be delivered by the Vendor, as well as the risk for these Products, only transfers to Fruity Line at the moment of delivery.

2.
If the Products are not accepted by Fruity Line, the risk for these Products transfers back to the Vendor three days after the date of Fruity Line’s notification to the Vendor that the Products are ready for pickup by the Vendor.

3.
If any rights other than the Vendor’s ownership rights are vested on the Products to be delivered by the Vendor, the Vendor must inform Fruity Line thereof immediately.

4.
Fruity Line is free to sell and/or transfer the Products delivered by the Vendor to third parties at any time.

5.
Pallets used as a means of transport and not charged to the Vendor as such remain the property of Fruity Line and will be exchanged immediately upon delivery and/or collection. Fruity Line is entitled to offset any balances accrued with the relevant carriers. The costs of returning these pallets to Fruity Line must be borne by the Vendor and/or carrier.

 

Article 9 – Liability and risk

1.
The Vendor bears the expense and risk for the Products to be delivered by the Vendor up to the moment of Delivery Duty Paid to the address of Fruity Line.

2.
If the Vendor has delivered Products to Fruity Line that are owned by a third party, then the Vendor indemnifies Fruity Line against all claims by the said third party in connection with damage caused by and/or with the Products the Vendor has delivered to Fruity Line, as well as damage to the Products themselves.

3.
The Vendor is liable for losses Fruity Line suffers as a result of recall actions by Fruity Line itself or third parties.

4.
The Vendor indemnifies Fruity Line against claims in regard to recall actions carried out by a third party (whether directly or indirectly) to which Fruity Line has transshipped the Products delivered by the Vendor.

5.
If Fruity Line suffers losses as a result of the presence of undesired residues or standards being exceeded, Maximum Residue Limits (MRLs) (e.g. chemicals and minerals) in the products to be delivered by the Vendor, the Vendor is liable for any such losses suffered by Fruity Line. This is the case in situations including (but not limited to) where Fruity Line is subject to a penalty or third parties bring a claim against Fruity Line.

6.
The Vendor is liable for the losses that Fruity Line suffers as a result of late delivery by the Vendor of the Products agreed, as well as in the event that the Vendor fails to deliver the Products agreed at all.

7.
The Vendor is liable for all losses that Fruity Line suffers as a result of a defect or failure in the Products and/or the Vendor’s failure to fulfil the Contract or to do so in a timely manner; this includes loss of sales and loss of profit, trading losses and other consequential loss. The Vendor fully indemnifies Fruity Line against claims of third parties based on losses as a result of the circumstances described above.

8.
The Vendor shall contract adequate insurance for losses as referred to above, and will provide Fruity Line access to or a copy of the insurance policy or policies in question, as well as proof of payment of the premiums, immediately upon demand by Fruity Line.

9.
If Fruity Line is liable for any losses, Fruity Line’s liability is in all circumstances limited to the amount paid in the situation in question under Fruity Line’s business liability insurance plus the deductible under the said insurance. If for any reason whatsoever, no payment under this insurance is made, all liability is limited to the amount of the invoice corresponding to the Contract under which the Vendor is claiming, with the proviso that all liability is limited to a maximum amount of €40,000.

 

Article 10 – Default and termination

1.
Fruity Line is authorised, without notice of default or judicial intervention being required, to suspend and/or terminate the Contract and/or related Contracts and/or the performance thereof, in whole or in part, by means of notice in writing to the Vendor, if: (a) the Vendor fails to comply with any of its obligations under the Contract, or fails to do so on time or appropriately; and/or (b) the Vendor is declared bankrupt, is the object of an application for bankruptcy, is granted suspension of payments or a request for suspension of its payments is made, its business is liquidated or attachment is secured on Products of the Vendor, or any or all of the Vendor’s business is transferred to a third party. The Vendor is also obliged to reimburse Fruity Line for all costs and losses, including costs incurred by Fruity Line for legal support, resulting from the Vendor’s failing in the fulfilment of its obligation under the Contract.

2.
In the event of termination, the Vendor bears the risk for Products already delivered. The Vendor shall immediately refund all amounts already paid by Fruity Line in regard to the terminated Contract. As soon as the Vendor has refunded Fruity Line for the amounts paid by Fruity Line, the Products shall be available to the Vendor, and the Vendor shall collect them.

3.
If the Vendor is in default, it owes to Fruity Line statutory interest/statutory commercial interest, as well as all judicial and extrajudicial costs reasonably incurred by Fruity Line in order to establish the liability of the Vendor and/or obtain payment of its claim and which fall under the scope of Book 6, Article 96, section 2 of the Dutch Civil Code.

4.
Fruity Line is entitled to terminate the Contract where the Vendor becomes the victim of permanent force majeure, in which case the Vendor shall reimburse Fruity Line for all costs incurred and to be incurred.

5.
In each of the cases identified above in sections 1, 2, 3 and 4 of this article, all Fruity Line’s claims against the Vendor become due and payable immediately.

6.
The Vendor must immediately inform Fruity Line if attachment is secured on movable or immovable property owned by Fruity Line and which the Vendor has in its possession for the purposes of the performance of the Contract.

7.
In the event of bankruptcy or suspension of payments, the Vendor must immediately inform Fruity Line thereof, and immediately present this Contract to a court bailiff, receiver or administrator to demonstrate Fruity Line’s ownership rights.

 

Article 11 – Force majeure

1.
In the event of force majeure, Fruity Line is authorised to suspend performance of the Contract or to terminate the Contract in whole or in part, without the Vendor being entitled to any compensation of losses from Fruity Line.

2.
On the part of Fruity Line, force majeure includes (but is not limited to):


strikes by the employees of Fruity Line or the third parties it engages for the purposes of the performance of the Contract;


illness of employees of Fruity Line or third parties it engages for the purposes of the performance of the Contract;


measures and/or injunctions by the Dutch government and/or any foreign government that are binding upon Fruity Line;


unforeseeable and unpredictable traffic impediments;


accident(s) involving transportation used for the purposes of the performance of the Contract as well as unforeseen technical problems with this transportation;


theft of items required for the performance of the Contract;


as well as all other unforeseen circumstances preventing Fruity Line from performing the Contract appropriately and in a timely manner and which cannot be attributed to Fruity Line.

3.
If upon the occurrence of the situation of force majeure, the Vendor has already partially fulfilled its obligations, Fruity Line will pay the Vendor a pro rata amount corresponding to the performance rendered by the Vendor.

 

Article 12 – Intellectual property rights and licences

1.
Fruity Line obtains, free of charge, a right of use to any intellectual property rights to the Products or their documentation by means of a non-exclusive, global and perpetual licence. The Vendor guarantees that the Products do not infringe the intellectual property rights of third parties. The Vendor indemnifies Fruity Line against any third-party claims based on actual or alleged infringement of such intellectual property rights. The Vendor shall compensate Fruity Line for any loss it incurs as a result of such claims.

 

Article 13 – Duties of disclosure and confidentiality

1.
The Vendor must supply Fruity Line with any information that may be of importance for Fruity Line. The Vendor must observe strict confidentiality with regard to any business information and data of and about Fruity Line of which it learns in any way in the context of the Contract. This duty of confidentiality applies equally to the Vendor’s employees and any third parties engaged by it to perform the Contract.

 

Article 14 – Transfer of rights and obligations; subcontracting

1.
Without the prior written consent of Fruity Line, the Vendor may not transfer the Contract or any obligations resulting therefrom, in whole or in part, to third parties, or have such obligations performed by third parties. Fruity Line reserves the right to attach conditions to any such consent.

 

Article 15 – Applicable law

1.
The legal relationship between the Parties is governed by Dutch law.

 

Article 16 – Dispute resolution

1. Any disputes between the Parties shall be decided exclusively by the competent court for the district where Fruity Line has its registered office, without prejudice to Fruity Line’s right to institute arbitration or other alternative dispute resolution proceedings.