Terms and Conditions
GENERAL TERMS AND CONDITIONS OF SALE AND DELIVERY OF FOSSA EUGENIA
DEPOSITED AT THE CHAMBER OF MERCHANDEL LIMBURG UNDER NUMBER 12037724
Article 1 Scope
1.1 In these general terms and conditions of sale and delivery, the term “Fossa Eugenia” refers to Telerscoöperatie Fossa Eugeniana U.A. and all its affiliates based in the Netherlands. Fossa Eugenia acts exclusively as a sales office/agent in the name and at the expense of the grower associated with Fossa Eugenia (hereafter “the Grower”).
1.2 In these general terms and conditions of sale and delivery, the term “product” or “products” refers to the vegetables and fruit offered or supplied by the Grower via Fossa Eugenia.
1.3 These terms and conditions apply to all offers issued and/or agreements concluded on the Grower’s behalf by Fossa Eugenia with third parties (hereafter “the Client”) and to their implementation.
1.4 These terms and conditions apply to the exclusion of any (general) terms and conditions used by the Client.
1.5 The Client will only be able to invoke stipulations varying from these terms and conditions if and insofar as Fossa Eugenia has accepted these stipulations in writing.
Article 2 Offers, orders and agreements
2.1 Agreements are formed between the Client on the one hand and the Grower designated by Fossa Eugenia on the other. Fossa Eugenia acts exclusively as a sales office/agent in the name and at the expense of the Grower. Insofar as Fossa Eugenia issues offers or concludes agreements in its own name, the term “the Grower” will extend to include Fossa Eugenia in these terms and conditions.
2.2 All offers issued by Fossa Eugenia on the Grower’s behalf are free of obligation. The placement of orders and acceptance of offers by the Client will be considered to be irrevocable.
2.3 The Grower will only be bound if Fossa Eugenia has confirmed the acceptance of the offer or as soon as the Grower has commenced performance of the agreement. Furthermore, the Grower will be bound only by the arrangements accepted by Fossa Eugenia.
2.4 Any actual or alleged inaccuracies in the order confirmation must be communicated in writing to Fossa Eugenia within one working day of the date of the Client’s confirmation, failing which the order confirmation will be deemed to be a correct and complete representation of the agreement.
2.5 Verbal promises or arrangements made by or with its staff will only be binding on Fossa Eugenia after and insofar as it has confirmed these in writing.
2.6 These general terms and conditions will apply in full to any amendments to the agreement.
Article 3 Conformity
3.1 All specifications by Fossa Eugenia of quantities and/or other particulars regarding the products are made with the greatest possible care. However, neither Fossa Eugenia nor the Grower can guarantee that no deviations will occur in this respect. The Client must check conformity with the quantities and/or other particulars agreed or specified when taking delivery of the products. The Grower will always be entitled to supply up to 5% more or less than the agreed quantity, in which case the invoice will have to be adjusted.
3.2 Samples, pictures, descriptions, catalogues, advertising materials and offers will not be binding on Fossa Eugenia and the Grower.
3.3 The Client must ascertain that the products it is ordering and/or has ordered and the associated packaging, labelling and other information meet the relevant government regulations imposed in the country of destination. The use of the products and their conformity to government regulations will be at the Client’s risk.
Article 4 Details
4.1 The Client guarantees the correctness, completeness and reliability of the details and information provided to Fossa Eugenia by or on behalf of the Client. Fossa Eugenia and the Grower will only be obliged to execute the order or continue its execution if the Client has provided all the details and information required by Fossa Eugenia. If the details necessary for the performance of the agreement are not at Fossa Eugenia’s disposal, or are not available in time or in conformity with the arrangements, or if the Client otherwise fails to fulfil its obligations, Fossa Eugenia will be entitled to pass on the resulting costs in accordance with its usual rates.
Article 5 Prices
5.1 The prices stated or agreed exclude packaging costs and VAT, import and export duties, excise duty and other taxes or levies imposed or charged in respect of the products and their transport, unless expressly agreed otherwise.
5.2 The prices stated have been calculated for delivery ex warehouse, unless agreed otherwise.
5.3 If, following the offer and/or the formation of an agreement, there is a change in cost-determining factors, such as taxes, excise duty, import duty, exchange rates, wages and the prices of goods and/or services (which the Grower may procure from third parties), Fossa Eugenia will be entitled to adjust the prices accordingly on the Grower’s behalf.
Article 6 Delivery
6.1 Deliveries will be made ex warehouse Fossa Eugenia, unless agreed otherwise in writing.
6.2 Delivery periods greatly depend on weather influences. For this reason, the delivery periods stated are estimates only and can never be regarded as final deadlines. The delivery period being exceeded will not oblige Fossa Eugenia and/or the Grower to pay any compensation and will not give the Client the right to disregard or suspend its obligations under the agreement. However, the Client will be entitled to terminate the agreement if and insofar as the Grower still fails to execute the order within a period specified by the Client which at least equals the delivery period originally stated or agreed. In that case, Fossa Eugenia and/or the Grower will not owe any compensation.
6.3 The delivery period is based on the working conditions applicable at the time of the conclusion of the agreement, on the anticipated weather conditions and on the timely supply of the items required by the Grower for the performance of the agreement. If a delay occurs due to a change in the weather or working conditions and/or late delivery of items required by the Grower, the delivery period will be extended insofar as necessary.
6.4 The delivery period will be extended by the duration of the delay occurring on the part of Fossa Eugenia and/or the Grower due to the Client’s failure to fulfil any obligation under the agreement or to lend the requested cooperation in respect of the performance of the agreement.
6.5 The moment of delivery of the products will be the moment when the products are separated off in Fossa Eugenia’s warehouse for the benefit of the Client. The products will be at the Client's expense and risk from the moment of delivery, even if the title has not yet been transferred.
6.6 The transport of the products will be at the Client’s expense and risk. Loading and unloading, as well as packaging, repackaging and packing, will be at the Client’s expense and risk, even if Fossa Eugenia assists the Client in this process.
6.7 If the Client fails to take delivery of the products or to collect them or arrange collection, they will be stored at the Client’s expense and risk for as long as Fossa Eugenia considers this desirable and/or necessary. In that case, and in the event of any other (imputable) failure on the Client’s part, Fossa Eugenia and the Grower will be entitled at all times either to demand performance of the agreement or to terminate the agreement at law or otherwise, this being at the option of Fossa Eugenia, all this without prejudice to their rights to compensation of the loss sustained, costs incurred and lost profits, including the costs of storage.
6.8 The Grower is entitled to perform an agreement in parts, in which case Fossa Eugenia will demand payment for the part of the agreement that has been performed.
Article 7 Packaging
7.1 Fossa Eugenia determines the manner in which the products are packaged in consultation with the Client.
7.2 Sustainable packaging materials, such as pallets and other materials requiring a deposit, will remain the property of Fossa Eugenia or the Grower and may be returned by the Client to Fossa Eugenia. Fossa Eugenia is entitled to charge the Client a fee for the use of these sustainable packaging materials, which fee will be repaid or settled with the Client after the packaging materials have been returned to Fossa Eugenia in undamaged condition.
7.3 The Client is not permitted to use or sell packaging originating from Fossa Eugenia or supplied via Fossa Eugenia otherwise than with the original packaging content.
Article 8 Seasonal and continuing performance agreements
8.1 If a seasonal agreement or other continuing performance agreement has been concluded with the Client, the Client will only be able to claim delivery under that agreement insofar as the products are actually available for delivery and are not intended for third parties.
8.2 If the quantity of products available on any day is insufficient to comply with all seasonal agreements and other continuing performance agreements, Fossa Eugenia will allocate the products to the relevant customers on the basis of an apportionment key which it considers reasonable, in which context parties to seasonal contracts will take priority over parties to contracts for a shorter period.
Article 9 Force majeure
9.1 If the Grower is prevented from performing the agreement due to force majeure on its part and/or on the part of Fossa Eugenia, the Grower will be entitled to suspend the performance of the agreement, which means that it can no longer be required to meet a particular delivery deadline. In that case, the Client will not be entitled to compensation of losses and/or costs.
9.2 Force majeure situations will include the following, among others: war, threat of war, riot, strikes, pinpoint strikes or work-to-rule, fire, adverse weather influences, diseases in cultivation or other cultivation-related problems, accidents or illness among staff, operational breakdowns, transport disruptions, interfering statutory provisions, import/export restrictions or other government restrictions, lack of raw materials, problems in production or transport not foreseen by the Grower, bankruptcy, a moratorium and/or dissolution of one or more Growers that supply the goods concerned, as well as any other circumstance which does not depend exclusively on the control of Fossa Eugenia or the Grower, such as non-supply or late supply of goods or services by third parties engaged by Fossa Eugenia and/or the Grower. If Fossa Eugenia is unable to fulfil its obligations because a Grower has ceased to supply goods to it, this will also be regarded as a force majeure situation.
9.3 In the event of a force majeure situation, Fossa Eugenia will be entitled to terminate the agreement on the Grower’s behalf for the part that cannot be performed by means of a written statement. If the force majeure situation lasts more than four weeks, the Client will also be entitled to terminate the agreement for the part that cannot be performed by means of a written statement.
9.4 If the Grower has already partially fulfilled its obligations or can only partially fulfil its obligations when the force majeure situation commences, Fossa Eugenia will be entitled to send a separate invoice for the part already supplied or to be supplied, and the Client will be obliged to pay this invoice as if it concerned a separate agreement.
Article 10 Warranty and complaints
10.1 The Grower warrants the soundness of the products specified in 10.2 which it supplied via Fossa Eugenia during the period specified in 10.2. If these products should nevertheless turn out to be faulty, Fossa Eugenia and/or the Grower will replace or arrange the replacement of all or part of the products concerned, or Fossa Eugenia will apply a reasonable price reduction, this being at the option and exclusive discretion of Fossa Eugenia.
10.2 With regard to cucumbers, lettuce and tomatoes, the warranty of 10.1 applies to products of quality class I-I and class I during a period of 48 hours after delivery. Products of quality class II and/or class III and/or other products are not subject to any warranty. The Client will accept products of quality class II and/or class III and/or other products in ‘as is’ condition.
10.3 The warranty of 10.1 will in any case not extend to faults which occur during or are (partly) due to the processing or resale of the products by the Client, normal ageing, the Client or the Client’s staff transporting, treating, using, processing or storing products in an improper manner or contrary to instructions issued by or on behalf of Fossa Eugenia, or due to the products being used for purposes other than that for which they were intended.
10.4 When taking delivery of the products, the Client must perform or arrange a careful inspection of the goods, at the risk of forfeiting all rights of complaint and/or warranty. Any complaint regarding the quantity of products delivered must be recorded on the delivery note at the time of taking delivery, failing which the quantities stated in the delivery note will constitute conclusive evidence against the Client.
10.5 Claims under the warranty must be submitted in writing to Fossa Eugenia within one working day of a fault occurring, whereby the Client must provide the order number and the grower code stated on the packaging. If the complaint is late and/or incomplete, any claim against Fossa Eugenia and/or the Grower will become null and void.
10.6 If the Client submits a complaint, it must give Fossa Eugenia the opportunity to perform or arrange an inspection of the products in order to establish the shortcoming. The Client will be obliged to keep the products about which the complaint was made available for Fossa Eugenia in the original packaging, at the risk of forfeiting all rights of complaint and/or warranty.
10.7 Returns to Fossa Eugenia of products sold, for any reason whatsoever, can only be made after prior written authorisation and provision of shipment and/or other instructions by Fossa Eugenia. The costs of transport and all associated costs will be payable by the Client. The products will remain at the Client’s and expense and risk at all times.
10.8 Any faults found in a part of the products supplied will not entitle the Client to reject or refuse the entire consignment of products supplied.
10.9 Any right of warranty or complaint will become null and void if the Client fails to fulfil any of its obligations towards Fossa Eugenia and/or the Grower under the underlying agreement, or to do so properly or in time.
10.10 Complaints will not suspend the Client’s payment obligations.
10.11 After establishing a shortcoming in a product or service, the Client will be obliged to do anything in its power to prevent or limit losses, expressly including - where applicable - immediate cessation of use, processing and/or sale.
10.12 The Client must communicate any actual or alleged inaccuracies in invoices from Fossa Eugenia in writing to Fossa Eugenia within five working days of the invoice date, failing which the Client will be deemed to have approved the invoice.
Article 11 Retention of title
11.1 The Grower will retain the title to the products supplied and to be supplied until the Client has paid the amounts owed for all products supplied and to be supplied in full, including the amounts owed on account of a breach of one or more agreements.
11.2 If the Client fails to fulfil its obligations or if there is reasonable fear that the Client will fail to do so, the Grower and Fossa Eugenia will each be entitled to retrieve or arrange the retrieval, at the Client’s expense, of the products pertaining to the Grower from the premises where they are kept. The Grower and Fossa Eugenia are hereby granted irrevocable authorisation to do so. In that case, the Client will grant the Grower and/or Fossa Eugenia or a third party designated by them access to the premises where the goods are kept. Any and all losses which the Grower and/or Fossa Eugenia may sustain will be at the Client’s expense and risk.
11.3 The Client is not entitled to pledge the products not yet paid for or to transfer the title to these goods otherwise than in the context of its normal business operations.
11.4 The Client is obliged to store the goods delivered subject to retention of title with due care and as the identifiable property of the Grower.
11.5 The Client has no right of retention towards the Grower and/or Fossa Eugenia in respect of the products supplied via Fossa Eugenia.
Article 12 Payment
12.1 Fossa Eugenia will invoice the Client on the Grower’s behalf for the goods supplied or to be supplied.
12.2 Unless agreed otherwise in writing, the invoices issued by Fossa Eugenia must be paid within eight days of the invoice date and exclusively in the manner indicated in the invoice.
12.3 Fossa Eugenia will be entitled at all times to demand full or partial prepayment and/or otherwise obtain security for payment on the Grower’s behalf.
12.4 Fossa Eugenia will be entitled to issue separate invoices for part deliveries.
12.5 If payment is not received in time, the Client will owe interest on the invoice amount at 1.5% per month, counting from the due date up to and including the date of payment, whereby a part of a month will be regarded as a full month, without notice of default being required.
12.6 All costs incurred in relation to collection, including extrajudicial collection costs and pre-litigation costs, among others, will be payable by the Client. The extrajudicial collection costs will be at least 15% of the amount to be collected, with a minimum of EUR 150.00.
12.7 The Client waives any right to a set-off of mutual claims. Fossa Eugenia will always be entitled to offset any amounts it owes to the Client against the amounts which the Client and/or companies affiliated to the Client owes to Fossa Eugenia, whether due and payable or otherwise, subject to conditions or a time limit.
12.8 The whole invoice amount will be immediately and fully due and payable if an agreed instalment is not promptly paid on the due date, or if the Client goes bankrupt or applies for a provisional or definitive moratorium, if the statutory debt restructuring scheme is declared applicable or an application has been filed for a guardianship order in respect of the Client, if any attachment is made of the Client’s assets and/or accounts receivable, or if the Client dies, goes into liquidation or is dissolved. If any of the above situations occurs, the Client will be obliged to notify Fossa Eugenia of this immediately.
12.9 Payments made by the Client will first be applied to settle the costs owed, subsequently to settle the interest incurred and finally to settle the due and payable invoices that have been outstanding for the longest period, even if the Client states that the payment relates to a later invoice.
Article 13 Cancellation and compensation
13.1 The Client may not cancel placed orders. If the Client nevertheless cancels all or part of a placed order, it will be obliged to compensate Fossa Eugenia for all the costs which Fossa Eugenia and the Grower incurred within reason with a view to the execution of this order, the services performed by Fossa Eugenia and the profits lost by the Grower, to be increased by VAT.
Article 14 Provision of advice
14.1 All advice provided by Fossa Eugenia or the Grower, as well as statements and/or specifications made by Fossa Eugenia or the Grower about the quality or properties of products to be supplied by the Grower, will be entirely free of obligation and will be provided by Fossa Eugenia or the Grower by way of non-binding information. Fossa Eugenia and the Grower do not provide any guarantees in this respect.
14.2 Fossa Eugenia and the Grower will not be liable for any direct or indirect losses, in whatever form and on whatever grounds, resulting from the provision of information and/or advice referred to in 14.1. The Client indemnifies Fossa Eugenia and the Grower against all third-party claims in this respect, except in the event of wilful misconduct or gross negligence on the part of Fossa Eugenia or the Grower.
14.3 Subject to Fossa Eugenia’s prior written consent, the Client will not be permitted to disclose or make available to third parties the contents of advice, opinions or other written or verbal communications from Fossa Eugenia or the Grower.
Article 15 Liability
15.1 Outside the provisions of Article 10, the Client will not have any claim due to faults in or relating to the products supplied by the Grower. This means that the Grower will not be liable for direct and/or indirect losses, including personal injury and property damage, intangible losses, consequential losses (trading losses and/or business interruption losses) and any other losses due to any cause, except in the event of gross negligence or wilful misconduct on the Grower’s part.
15.2 Fossa Eugenia is not the Client’s contracting party and will never be liable for losses arising from or relating to the performance of the agreement between the Grower and the Client, except in the event of gross negligence or wilful misconduct on Fossa Eugenia’s part.
15.3 Likewise, Fossa Eugenia and the Grower will not be liable within the meaning referred to above for acts of their employees or other persons within their control, including (gross) negligence or wilful misconduct on the part of these persons.
15.4 Damage to products caused by packaging being damaged or vandalised will be at the Client’s expense and risk.
15.5 If Fossa Eugenia, on the Grower’s behalf, exercises a right to suspend performance or to terminate the agreement based on the facts and/or circumstances known to it at that moment, and it is subsequently established as an indisputable fact that this right was exercised inappropriately, neither the Grower nor Fossa Eugenia will be liable or obliged to pay compensation of any kind, except in the event of wilful misconduct or gross negligence on Fossa Eugenia’s part.
15.6 In all cases in which Fossa Eugenia and/or the Grower would be obliged to pay compensation, this compensation will never exceed the invoice value of the products supplied (excluding packaging) due to or in relation to which a loss was sustained. If the loss is covered by an insurance policy of Fossa Eugenia and/or the Grower, furthermore, the compensation will never exceed the amount actually paid out by the insurer in the case concerned.
15.7 Any claim against Fossa Eugenia and/or the Grower, except those acknowledged by Fossa Eugenia or the Grower, will expire by the mere lapse of 12 months after the inception of the claim.
15.8 The Client indemnifies Fossa Eugenia, the Grower, their employees and the auxiliary persons engaged by them for the performance of the agreement against any third-party claim, including claims based on product liability, in connection with the performance of the agreement by the Grower and/or the services provided by Fossa Eugenia, irrespective of the cause.
Article 16 Representation
16.1 If the Client acts on behalf of one or more third parties, it will be liable towards Fossa Eugenia and the Grower, without prejudice to the liability of those third parties, as if it acted in the capacity of client.
Article 17 Concluding provisions17.1 The voidness or voidability of any provision of these terms and conditions or of agreements to which these terms and conditions apply will not affect the validity of the remaining provisions. Fossa Eugenia and the Client are obliged to replace the void or voided provisions by valid provisions whose purport resembles that of the void or voided provision as closely as possible.
17.2 All disputes between Fossa Eugenia and/or the Grower on the one hand and the Client on the other will initially be heard exclusively by the District Court of Roermond, subject to the mandatory jurisdiction of a different Dutch court and unless Fossa Eugenia or the Grower gives preference to another competent court notwithstanding this article.
17.3 All agreements concluded by Fossa Eugenia (whether on the Grower’s behalf or otherwise) are governed exclusively by Dutch law.
17.4 Any international treaty regarding the purchase of movable tangible property whose effect can be excluded between the parties will not apply and is hereby expressly excluded. More in particular, the applicability of the CISG 1980 (Convention on the International Sale of Goods 1980) is expressly excluded.
17.5 In the event of disagreement on the interpretation of these general terms and conditions, the Dutch text will be binding.