Farmforte Europe B.V., registered under Chamber of Commerce number 70162514, located in Loberingemaat 5G, 7942 JD in Meppel, The Netherlands, as well as its legal successors and/or its affiliated companies, hereinafter referred to as "Farmforte", have established the following General Terms and Conditions of Sale as of 1 May 2020:
Article 1. Definitions
1.1. Other party: any (legal) person who enters into an agreement with Farmforte, or to whom Farmforte makes an offer and / or quotation, and, apart from this, its representative(s), agent(s), authorized representative(s), legal successor(s) and heirs;
1.2. Agreement: any agreement that is concluded between Farmforte and the Other Party, any change thereof or addition thereto, as well as all (legal) acts in preparation and implementation of that agreement.
Article 2. Applicability
2.1. These General Terms and Conditions apply to all quotations and offers made by Farmforte, agreements concluded, as well as accepted orders. These General Terms and Conditions of Sale apply to all (legal) acts (including omissions) of Farmforte and its relevant Other Party.
2.2. Agreements as referred to in paragraph 1 of this article include sales, commission, consignment, framework and related agreements.
2.3. The other party allows Farmforte to make use of third parties, not being employees of Farmforte, for the implementation of the provisions of the agreement. The General Terms and Conditions of Sale also apply to legal acts performed by these third parties in the context of the execution of obligations under Farmforte under the agreement.
2.4. Deviations from and / or additions to any provision in these General Terms and Conditions of Sale only bind Farmforte if these deviations and / or additions have been expressly agreed between Farmforte and the Other Party without reservation and in writing. Any agreed deviations and / or additions only relate to the relevant Agreement.
2.5. If and insofar as the Other Party refers to general terms and conditions other than Farmforte's General Terms and Conditions when accepting an offer or quotation or concluding an agreement, in order to make these general terms and conditions apply to the agreement, it applies that general terms and conditions other than these terms and conditions only apply to the agreement if Farmforte has expressly accepted these general terms and conditions without reservation and in writing.
2.6. If any provision of these General Terms and Conditions of Sale - after the intervention of a judicial authority - proves to be null and void, only the relevant provision will be excluded. All other provisions remain fully valid.
Article 3. Offer and prices
3.1. All agreements concluded by Farmforte are deemed to have been concluded in place of one of Farmforte's branches, namely Meppel or Barendrecht, as well as by electronic means, both with regard to the execution of the agreement and the payment of the agreement.
3.2. All amounts stated in quotations, offers, agreements and orders are shown in euros, unless the parties have agreed otherwise in writing. Furthermore, all amounts stated are exclusive of transport costs and turnover tax, unless the parties have agreed otherwise in writing.
3.3. Every offer made by Farmforte is entirely without obligation.
3.4. Farmforte reserves the right to refuse orders without stating reasons.
3.5. Farmforte is not obliged to keep to an offer and / or an agreement for a stated price, if this price is based on a printing and/or writing error.
Article 4. Agreement
4.1. If an offer contains a non-binding offer which is accepted by a third party (Other party), Farmforte has the right to withdraw the offer within two working days after receipt of the acceptance.
4.2. The other party will receive a written order confirmation or a written record of the agreement from Farmforte. This written record may consist of the invoice and/or order confirmation or delivery note.
4.3. If, after the agreement has been concluded, the parties have agreed further and/or additional agreements or changes, these will only be binding if these agreements have been laid down in writing. Here too, the written record may consist of the invoice and/or order confirmation or delivery note.
Article 5. Cancellation of the agreement
5.1. Cancellation of the agreement by the Other Party is only possible if this is done in writing before the start of the execution of the agreement. With due observance of the provisions below, in the event of cancellation, all preparation costs incurred will always be charged by Farmforte to the Other Party.
5.2. If the agreement is canceled within 72 hours prior to the agreed time of delivery, the Other Party will owe compensation in addition to the preparation costs, which will be set at 50% of the agreed price. If cancellation takes place later than 24 hours prior to the agreed time of delivery, the Other Party will owe the full agreed price.
5.3. In the event of cancellation, the Other Party is obliged, regardless of the time of cancellation, to reimburse Farmforte for the costs that Farmforte must pay to third parties under and in connection with the - canceled - agreement.
Article 6. Delivery
6.1 The agreed delivery time is not a strict deadline, unless the parties have expressly agreed otherwise.
6.2 Delay in delivery - insofar as this remains within the bounds of reasonableness - does not entitle the Other Party to dissolve the agreement or any compensation.
6.3 The quantity delivered by Farmforte is deemed to comply with what parties have agreed in regard to number and weight, as well as requirements prescribed by public and / or private law, subject to proof to the contrary from the Other Party. The parties thus agree on an explicit presumption of evidence in this regard.
6.4 Delivery takes place at Farmforte warehouse or from the grower, unless the parties have agreed otherwise in writing. The moment of delivery is the moment when the goods are collected by the customer.
6.5 If the parties have agreed that Farmforte will store the goods to be delivered by it for the Other Party, whether or not at its own or with a third party, the delivery will take place at the moment the goods are stored.
6.6 Farmforte is always entitled to demand sufficient security for the fulfillment of the payment obligations of the Other Party before fulfilling its obligations under the agreement.
6.7 If the Other Party still has any payment obligation to Farmforte, in particular if invoices from Farmforte have still not been paid in full or in part by the Other Party, Farmforte is entitled to suspend the delivery obligations until the Other Party has fulfilled all its obligations.
Article 7. Acceptance and advertising
7.1. The other party must inspect and check these goods immediately after delivery by Farmforte of the agreed goods. This inspection and control must take place in the presence of the driver. The other party must check whether the delivered goods meet the provisions of the agreement, namely:
a. Whether the correct goods have been delivered;
b. Whether the goods delivered meet the quality requirements to be set and agreed upon, i.e. the requirements that may be set for normal use and / or for commercial purposes;
c. Whether the delivered goods correspond in terms of quantity (number, quantity, weight) to what parties have agreed in this regard. If the deviation established by the Other Party is less than 10%, the Other Party is obliged to accept the delivered goods in full, at a proportional reduction of the agreed price.
7.2. If delivery of the goods takes place ex warehouse, the Other Party must inspect the delivered goods in Farmforte's sales area.
7.3. Any shortcomings and objections that do not relate to circumstances as stated in paragraph 1 of this article under c, must be reported to Farmforte in writing immediately after discovery - but no later than 8 hours after delivery. If Farmforte does not receive a complaint immediately after delivery of the goods, the goods are deemed to have been delivered in accordance with the provisions of the agreement and without any shortcoming.
7.4. Complaints regarding defects that are not immediately visible must be reported to Farmforte in writing as soon as possible after detection, so that Farmforte is enabled to investigate the correctness of the complaints concerned on the spot. The Other Party must enable Farmforte to check the Other Party's complaint for correctness. If Farmforte has not received a written complaint from the Other Party within eight hours after delivery, it applies that the shortcoming and / or the defect is not present at the time of the delivery, but it is assumed between the parties that this shortcoming and / or whether this defect arose after delivery.
7.5. The provisions of this article are fully applicable if the goods delivered by Farmforte are delivered to a third party for the Other Party. The Counterparty can never, under any circumstances, object to Farmforte that it has not inspected and checked the delivered goods because they were stored elsewhere, with a third party.
7.6. The other party is obliged at all times to take care of the preservation of the goods as a careful debtor and / or possessor.
Article 8. Payments
8.1. The Other Party must pay the agreed price after receipt of the invoice relating to the delivery - without discount or invoking compensation - within 14 days of the invoice date, unless this arrangement has been deviated from.
8.2. Settlement by the Other Party of the amounts invoiced by Farmforte with a counterclaim made by it (Other Party), or suspension of payment by the Other Party in connection with a counterclaim submitted by it, is not permitted, unless Farmforte expressly owes the chargeability of the counterclaim. and has acknowledged without reservation, or the existence of the counterclaim has been irrevocably established in court.
8.3. If the payment term is exceeded, the Other Party will owe penalty interest of 1% per month, without prejudice to Farmforte's other rights, such as the right to compensation for extrajudicial costs and statutory interest.
8.4. If the payment term is exceeded, the Other Party will owe the statutory commercial interest on the outstanding amount, without prior notice of default. Insofar as it has been established in court that the Customer does not owe the statutory commercial interest, it owes Farmforte the statutory interest.
8.5. If the Other Party remains negligent to pay the outstanding amounts to Farmforte even after it has been in default by Farmforte, it will also be obliged to pay the compensation in addition to the total amount due, consisting of the outstanding amounts plus interest owed. extrajudicial collection costs. The amount of the extrajudicial collection costs is set at 15% of the principal amount owed.
8.6. Payments made by the Other Party always first serve to pay all interest and costs owed and then to pay the longest outstanding invoices. This is no different if the Other Party states that the payment relates to a later invoice.
Article 9. Retention of title
9.1. Goods delivered by Farmforte remain the property of its property until full payment of all claims of Farmforte on the Other Party under agreements concluded between them, including interest and costs.
9.2. The Other Party is only authorized to resell goods delivered by Farmforte that fall under the retention of title, as stated in paragraph 1 of this article, if resale falls under the normal business performance of the Other Party.
9.3. If the Other Party fails to fulfill its obligations, or if Farmforte has reasonable grounds for fear that the Other Party is unable to fulfill its obligations under the agreement, or if it is suspected that the Other Party does not fulfill its obligations. wants to comply, then Farmforte is entitled to retrieve or have returned the goods delivered – on which the retention of title referred to in paragraph 1 of this article rests – from the Other Party or the third party holding the goods for the Other Party. The other party is obliged to cooperate in such an action on the part of Farmforte.
9.4. If third parties wish to establish or assert any right to the goods delivered by Farmforte subject to retention of title, the Other Party must notify Farmforte of this immediately. The Other Party must also inform this third party of the fact that the goods have been delivered subject to retention of title. The4other party must provide the third party with an agreement concluded between the parties, showing that a retention of title has been made with regard to the delivered goods.
9.5. The other party is obliged to cooperate with all measures that Farmforte wishes to take to protect its property rights with regard to the goods it supplies.
Article 10. Liability and risk
10.1. If the Other Party is in possession of goods delivered by Farmforte that belong to Farmforte (including packaging) and / or are subject to the retention of title as referred to in Article 9 of these General Terms and Conditions of Sale, the Other Party is from the moment that the goods have been delivered to it the moment of return of these items, or the moment of transfer of ownership of these items, liable for damage caused by and / or with these items.
10.2. Furthermore, the Other Party is liable – if it has in its possession goods that belong to Farmforte (including packaging) and/or are subject to the retention of title as referred to in Article 9 of these General Terms and Conditions of Sale – for damage suffered by Farmforte as a result of damage, loss or destruction of these goods and what damage has arisen in the period between the time when Farmforte delivered the goods and the moment of return of these goods or the moment of transfer of ownership of these goods.
10.3. If Farmforte has to make use of its retention of title as a result of circumstances attributable to the Other Party, but nevertheless suffers damage, the Other Party is liable for the damage suffered by Farmforte.
10.4. The Other Party will – if in the context of the performance of the agreement – own items that belong to Farmforte (including packaging) and / or are subject to the retention of title as referred to in Article 9 of these General Terms and Conditions of Sale, in case of theft , report loss or damage to the goods delivered to him by Farmforte immediately to Farmforte. In the event of theft or war damage, the Other Party will also report this immediately to the police of the municipality where the theft took place or where the acts of war have been caused. The other party must provide Farmforte with a copy of this declaration.
10.5. If Farmforte has delivered goods to the Other Party that belong to a third party, the Other Party indemnifies Farmforte against all claims of this third party that are related to damage caused by and / or to the goods Farmforte has delivered to the Other Party. , as well as damage to the goods delivered by Farmforte to the Other Party.
10.6. If the Counterparty, or a third party to whom the Counterparty has passed on the goods delivered by Farmforte, carries out a recall or has it carried out, Farmforte can only be held liable for (part of) the associated costs, if
i) it has been established that Farmforte is liable for the circumstance that led to the recall, and ii) Farmforte was consulted and had a say before the recall was carried out, and iii) it was established that the Other Party acts as a reasonable agent has carried out a reasonably competent colleague and has attempted to minimize the costs associated with the recall.
10.7. If Farmforte is liable for any damage, any liability of Farmforte is limited to the amount paid out in the relevant case under Farmforte's corporate liability insurance, plus the deductible under this insurance. If for any reason no payment is made under this insurance, any liability is limited to the amount of the invoice corresponding to the Agreement on the basis of which the Other Party claims, on the understanding that any liability is limited to an amount of EUR 10,000.
Article 11. Force majeure
11.1. In case of force majeure, Farmforte is entitled
i) either to suspend the execution of the Agreement
ii) or to dissolve the agreement in whole or in part, without the Other Party being able to bring any claim in respect of damages against it (Farmforte).
11.2. Force majeure on the part of Farmforte includes - among others - strikes by Farmforte employees or by third parties engaged by it for the performance of the Agreement; - illness of Farmforte employees or third parties engaged by it for the performance of the Agreement; - measures and / or prohibited by the Dutch and / or foreign government to which Farmforte is bound; - unforeseeable and unpredictable traffic obstacles; - accident (s) with a means of transport used for the execution of the agreement as well as unforeseen technical defects in these means of transport; - (attributable) shortcoming in the fulfillment by suppliers of Farmforte; - theft of items required for the execution of the agreement; - as well as all other5unforeseen circumstances that prevent Farmforte from executing the agreement properly and on time and that are not for the account and risk of Farmforte.
11.3. If Farmforte has already partially fulfilled its obligations, or can only partially fulfill its obligations, upon commencement of the force majeure, it is entitled to invoice the already delivered or delivered part separately. The other party is then obliged to pay the invoice as if it were a separate agreement.
11.4. All agreements relating to the sale of agricultural products are subject to harvest reservation. If, as a result of a disappointing harvest with regard to the quantity and / or quality of agricultural products, so many products are less available, including rejection by competent authorities, than could reasonably be expected at the conclusion of the agreement, Farmforte has right to reduce the quantities sold by it accordingly. By supplying this quantity, thus reduced, Farmforte fully meets its delivery obligations. Farmforte is then not obliged to supply replacement agricultural products and is also not liable for any damage whatsoever.
Article 12. Default and dissolution
12.1. If the Other Party does not, not properly or not timely comply with any obligation that may arise for it from the agreement or the law concluded with Farmforte, including the obligation to pay on time as included in Article 8 of these General Terms and Conditions of Sale, the Other Party is without notice of default and Farmforte is entitled to suspend performance of the agreement and / or to dissolve that agreement and directly related agreements in whole or in part without Farmforte being obliged to pay any compensation and without prejudice to Farmforte's further rights.
12.2. If the Other Party is in default, it owes Farmforte the statutory (commercial) interest as well as all (extra) judicial costs that Farmforte has reasonably had to incur in order to determine the Other Party's liability and / or to obtain payment of its claim. , and which fall under the scope of Article 6:96 paragraph 2 of the Dutch Civil Code.
12.3. In the event of a (provisional) suspension of payment or bankruptcy of the Other Party, shutdown or liquidation of the Other Party's business, all agreements with the Other Party will be dissolved by operation of law, unless Farmforte informs the Other Party within a reasonable period of compliance with (a part) of the relevant agreement (s), in which case Farmforte is entitled, without notice of default, to suspend the execution of the agreement (s) concerned, until payment has been sufficiently secured, without prejudice to Farmforte's further rights.
12.4. Farmforte has the right to terminate the agreement if there is permanent force majeure on the part of the Other Party. The Other Party will then reimburse Farmforte for all costs incurred and to be incurred by Farmforte.
12.5. In each of the cases referred to in paragraphs 1, 2, 3 and 4 of this article, all claims of Farmforte on the Other Party are immediately due and payable and the Other Party is obliged to immediately return rented or unpaid items.
12.6. The Other Party must immediately inform Farmforte if an attachment is levied on movable or immovable property that belongs to Farmforte and which the Other Party has in its possession in the context of the execution of the agreement.
12.7. In the event of bankruptcy or suspension of payment, the other party must immediately inform Farmforte in this regard, and immediately show a bailiff, trustee or administrator the agreement and point out Farmforte's property rights.
Article 13. Packaging
13.1. Farmforte uses packaging in the context of the delivery of its goods. Packaging includes - among other things - pallets and crates. If Farmforte charges a deposit in this respect, then the packaging will be taken back at the invoice price applicable at the time of return (in case of business in foreign currency, the packaging will be taken back at the time applicable at the time of delivery. course). A fixed cost reimbursement will possibly be charged for the receipt of returned packaging in accordance with the applicable regulations. The other party will be provided with this arrangement at its request.
13.2. The packaging that the Other Party wishes to return must be so clean and fresh that it is suitable for use with fresh edible horticultural products without further action on the part of Farmforte.
13.3. If the return of packaging will take place via Farmforte's own means of transport, the Other Party must ensure that the packaging is ready for transport sorted.
13.4. Packaging not supplied by Farmforte will only be taken back if and insofar as Farmforte carries the relevant products in its own range and the packaging is in good condition.
Article 14 Industrial and intellectual property rights
14.1. Farmforte expressly reserves any intellectual and / or industrial property rights (brands) with regard to the products it supplies.
14.2. The Other Party is not permitted to infringe on the intellectual and / or industrial property rights of a third party using products supplied by Farmforte. The Other Party indemnifies Farmforte against any third-party claims arising from an infringement of intellectual and / or industrial property rights that are made using the goods delivered by Farmforte and that take place after Farmforte has delivered the goods to the Other Party.
Article 15 Applicable law
15.1. On every agreement and legal relationship between Farmforte Europe B.V. and its other party is exclusively governed by Dutch law. All disputes will only be submitted to the competent court in the district of Zwolle.Application of the United Nations Convention on Contracts for the International of Sale of Goods (CISG, Vienna 1980) is excluded.
15.2. This agreement has been translated from the Dutch language into the English language. The Dutch text is binding in the event of any difference in content and / or purport.
Article 16 Disputes
16.1. Disputes arising from an assignment, quotation, offer or agreement to which these General Terms and Conditions of Sale apply, including conflicts relating to these General Terms and Conditions of Sale, will only be settled by the competent court in the district where Farmforte is established, on the understanding that this choice of forum does not affect Farmforte's right to settle a dispute through arbitration or binding advice.
16.2. Contrary to the provisions of paragraph 1 of this article, the parties may agree in writing to leave the settlement of the dispute to the competent court in another district.