General terms and conditions of Med Fruit Europe BV (hereinafter referred to as Med Fruit)
located in Amsterdam
Article 1 Applicability
1. These general terms and conditions apply to all contracts entered into by Med Fruit however called. In particular, these terms and conditions also apply to contracts entered into by Med Fruit for the delivery of products and services to Med Fruit customers.
2. Where these terms and conditions refer to “customer,” this must be understood to mean any natural or legal person who is in a contractual relationship with Med Fruit, arising from a purchase agreement and/or a similar agreement entered into or to be entered into with Med Fruit. In particular, “customer” is also understood to mean the person for whose account and on whose authority or because of whose action products and/or services are delivered.
3. The provisions of these general terms and conditions can only be deviated from if and insofar as Med Fruit has expressly agreed to this or if this has been agreed on with Med Fruit in writing. If the present terms and conditions have been deviated from tacitly or expressly once or multiple times, the customer cannot derive any rights from this with regard to agreements established thereafter.
4. Where these terms and conditions refer to (delivery of) products, this is also understood to mean the provision of services and the performance of activities of any nature whatsoever.
Article 2 Offers and conclusion of the agreement
1. The order given to Med Fruit counts as an offer. This offer has been accepted by Med Fruit as soon as it has been confirmed in writing by Med Fruit.
2. The agreement is entered into as soon as Med Fruit has accepted the order; this acceptance binds the customer. Tacit acceptance is deemed to have taken place if the customer has not communicated in writing that the order has not been accepted within two days of receipt of order confirmation to Med Fruit.
3. If a customer fails to pick up the order on the day aforementioned in the order confirmation, Med Fruit can dissolve the agreement without judicial intervention or suspend the agreement, at the discretion of Med Fruit. Dissolution and suspension are without prejudice to the right to reimbursement of all costs incurred by Med Fruit.
4. Each agreement entered into with Med Fruit contains the dissolutive or suspensive condition – at the discretion of Med Fruit – that Med Fruit will find sufficient creditworthiness of the customer, exclusively at the discretion of Med Fruit; Med Fruit has the right to refuse an order from a customer for this reason.
5. Med Fruit is entitled to demand from the customer that one provides security for the fulfillment of one’s obligations, in particular also after the establishment of the agreement. If the security required by Med Fruit is not provided, Med Fruit can suspend the performance of its obligations and/or dissolve the agreement without judicial intervention, without prejudice to any other rights that arise for Med Fruit from the ordinary law.
6. Information relating to that which is sold, such as characteristics, quality, color, etc., as well as information in printed matter, drawings, images, samples, etc. provided by Med Fruit with the offer, are provided to the best of our knowledge and with the utmost care, but will never be considered binding.
7. In exceptional cases, at the discretion of Med Fruit, cancellation of an order can be approved by Med Fruit. This permission will have to be given in writing then. In case of cancellation of an order by the customer, all costs incurred as well as damages and interests will be charged to the customer.
8. Agreements and/or commitments made by employees of or on behalf of Med Fruit only bind Med Fruit if these agreements and/or commitments are confirmed explicitly and in writing by Med Fruit’s directors authorized to represent the company.
9. Med Fruit reserves the right to refuse orders without indication of its reasons. Such a refusal never gives any right to compensation.
10. Without the express written consent of Med Fruit, the customer is not permitted to transfer rights or obligations under agreements entered into with Med Fruit to third parties, including companies affiliated with the customer.
11. If a contract is entered into with two or more customers, they are each jointly and severally liable for full compliance with the agreement they have entered into.
12. Med Fruit can have the assignment be performed by a third party designated by Med Fruit at a time to be determined in further consultation. The customer agrees to the transfer by Med Fruit to a third party/third parties of all rights and obligations arising from the agreement(s) Med Fruit entered into with the customer.
Article 3 Prices
1. Unless expressly stated otherwise, the prices are in euro-currency, exclusive of turnover tax, based on the minimum basic quantities used by Med Fruit, exclusive of the costs of packaging, and transport costs are not included, but for the account of the customer.
2. If not determined otherwise at the establishment of the agreement, the prices and delivery conditions apply that are included in the computer files of Med Fruit and as applicable to the relevant customer on the day of delivery.
3. The delivered quantities and weights are specified on a delivery document by Med Fruit. If the customer does not express one’s objection to this within 24 hours at the latest, the quantity or weight specified on the delivery document is deemed to represent the delivered goods correctly.
4. All agreed prices are binding unless, after the offer, one of the cost price-determining factors of the product changes in the period between the time of the offer and the time of delivery and subsequent price increases cannot or barely be influenced by Med Fruit. In such cases, Med Fruit has the right to adjust the agreed price accordingly, irrespective of whether or not the cost price increase was foreseeable at the time of the offer, with due observance of relevant statutory regulations.
Article 4 Delivery, delivery terms, and delivery risk
1. Delivery takes place ex-warehouse.
2. Delivery takes place by making available the sold to customer or one’s transporter.
3. If and as soon as the products sold are made available to the customer, the risk will pass to the customer.
4. If the products sold are made available, the loading, transporting, and unloading will be at the risk of the customer.
5. The customer is obliged to accept the ordered and delivered products and pay immediately in accordance with the agreed payment conditions without appeal to any discount or compensation. By paying the invoice amount or signing the letter of contents, the customer confirms receipt of the products. If the customer does not fulfill one’s purchase obligation or payment obligations, Med Fruit is entitled to declare the agreement dissolved without judicial intervention.
Article 5 Complaints
1. When receiving the products, the customer must check whether the delivery corresponds with the order made. Visible damage or defects that can already be detected on purchase (including shortages) must be reported immediately by the customer. If the customer opens, breaks or damages packaging or products before they are paid, the customer is obliged to purchase and pay the products concerned.
2. Visible damages, defects or shortcomings must be communicated to Med Fruit by the customer on the consignment note or the delivery document, or otherwise directly in writing, in the absence of which full proof applies that the customer has received the products in a proper and undamaged condition at delivery, in any case externally.
3. Complaints about not immediately detectable shortages or defects concerning the delivered goods, when it concerns fresh, refrigerated or frozen products, must be communicated to Med Fruit immediately but no later than 12 hours after delivery. When it concerns other products, this must be communicated to Med Fruit in writing within 24 hours of delivery.
4. Any right of action of the customer towards Med Fruit relating to errors in the delivery or defects in or to products delivered by Med Fruit expires irrevocably as soon as the specified complaint periods have expired, as well as in those situations in which the customer does not provide Med Fruit with sufficient assistance with regard to an investigation into the merits of the complaints. The products to which complaints relate must remain available to Med Fruit for viewing in the state in which the products were at the time the defects were found. The right to complain expires after the customer has put the delivered goods into use, has edited or processed them or has it have put into use, processed or processed, or has delivered it to third parties unless Med Fruit has explicitly given its consent for this purpose or that it concerns durable consumer products to which a manufacturer’s warranty applies.
5. If a complaint proves to be justified and the procedures above are also met regarding communicating about complaints, Med Fruit will credit the amount corresponding to the complaint. The customer will never be able to claim any compensation from Med Fruit in this type of situation; Med Fruit’s liability is limited to the value of the delivered products that were complained about.
6. Complaints do not entitle the customer to suspend payment of the related invoice, while compensation is expressly excluded by Med Fruit. The complaint term regarding invoices sent by Med Fruit will not exceed three days from the date of receipt. If the invoice has not been protested against within this period, it is deemed to represent the underlying transaction(s) with Med Fruit correctly and to have been approved by the customer.
Article 6 Retention of title
1. The products delivered by Med Fruit remain the property of Med Fruit until the moment of full payment of the purchase price due, including any interest and costs. The products delivered by Med Fruit to the customer have been delivered under the suspensive conditions of full payment of the purchase price, interest and costs by the customer. After full payment, the ownership of the delivered products passes to the customer; at all times, payments are deemed to relate to the longest overdue invoice.
2. All products originating from Med Fruit that are in possession of the customer will always be deemed to be the same as those stated on the unpaid invoices, at least insofar as the quantity of products in possession of the customer by type and composition does not exceed the amounts specified on the unpaid invoices.
3. The customer does not have the right to pledge the unpaid products, to create (or have created) a non-possessory pledge on them or to establish (or have established) any other right in rem on behalf of a third party.
4. The customer is allowed to alienate the delivered, not yet paid products, solely in the context of one’s normal business operations, unless Med Fruit has summoned the customer to make the delivered products available to Med Fruit immediately.
5. The customer now grants Med Fruit the right, where appropriate, to enter all those places where the products delivered by Med Fruit are located, to enable Med Fruit to exercise its property rights and to take back the unpaid products. The retrieval of its goods in this way is without prejudice to the right of Med Fruit to demand compensation from the customer for damage suffered or costs incurred as a result of the non-performance attributable to the customer.
VERLENGD EIGENDOMSVOORBEHOUD DUITSLAND
UITDRUKKELIJK ONTBINDEND BEDING BELGIË
En cas de non-paiement à l’échéance le vendeur peut considérer celle-ci comme résolue de plein droit et sans mise en demeure. Le vendeur se réserve la propriété des marchandises jusqu’au complet paiement. Les risques sont à charge de l’acheteur. Les acomptes pourront être conservés pour couvrir les pertes éventuelles à la revente.
Article 7 Invoicing and payment
1. The payment term made known to the customer is to be regarded as a strict deadline. In the event of payment by bank, either by bank transfer or by direct debit, the credit value date of the account of Med Fruit will apply as the day of payment. The customer is not entitled to apply a discount or compensation to such payments to Med Fruit.
2. If the customer has not paid in time or in full in accordance with the foregoing, one is in default without a further notice of default or warning being required and Med Fruit is entitled to charge the customer an overnight interest rate equal to a maximum of 8. 25% per year on top of the euro basic rate, as applied at the moment of calculation by the majority of the general banks in the Netherlands, divided by the factor 365, rounded to 2 decimal places.
3. All costs related to the collection of amounts due, the extrajudicial costs in particular, will be borne by the customer. The extrajudicial costs are determined on at least 15% of the indebted amounts of the principal sum, with a minimum of €50 and without prejudice to the right of Med Fruit to charge the customer further reasonable costs.
4. Every payment by the customer will first serve to settle the interest owed and then to settle the costs of collection, except the judicial costs. Only after payment of these amounts will any payment by the customer be deducted from the outstanding amount of the principal sum, the first of which will be deducted from the oldest outstanding claim, irrespective of the description that the customer may have given to the payment.
5. Med Fruit is entitled to compensation of amounts owed or to be claimed with those amounts that Med Fruit can claim from the customer or are due to one.
Article 8 Liability
1. Med Fruit only accepts the legal obligation to pay compensation if and insofar as the customer proves that the damage was caused by Med Fruit’s gross negligence. The resulting liability for damage is expressly limited to the amount of the order that led to damage.
2. Any further liability for Med Fruit for damage, including but not limited to liability for employees and auxiliary persons, is excluded, however caused, including all direct and indirect damage, such as consequential loss or trading loss. Also, the customer indemnifies Med Fruit against all third-party claims about any damage suffered or to be suffered by such third party or parties, with due observance of all that is stipulated in this article.
3. Med Fruit accepts no liability for the possible consequences of not having products in stock.
4. During the (internal) transport and storage of products delivered by Med Fruit, the customer must act in accordance with the applicable laws and regulations, including the HACCP standards and the storage conditions, failing which no liability can be accepted for (damage resulting from) defects in or to the products.
5. If, in its opinion, Med Fruit is obliged to take measures or to cooperate with producer-initiated recall actions to prevent (further) damage as a result of consumer claims on the grounds of a defect in or to products delivered, the customer undertakes to cooperate with such measures and, if this proves necessary or desirable, to comply with the liability of the producer by Med Fruit.
6. Insofar as the products delivered by Med Fruit have an expiration date, Med Fruit will no longer accept any liability after consuming or using these products after the expiration date. The customer must ensure that products with an expiration date are no longer processed or sold after the expiration of those dates. The customer indemnifies Med Fruit explicitly against any claims of third parties in respect of damages resulting from the consumption or use of products delivered by Med Fruit if these have been processed, used or sold by the customer after the expiration date.
7. Not eligible for compensation is trading loss including, for example, stagnation losses and loss of profit.
Article 9 Force majeure
1. Force majeure is understood to mean any circumstance beyond the control of Med Fruit which is of such a nature that compliance with the agreement cannot reasonably be expected from Med Fruit (so-called non-attributable shortcoming in performance). Force majeure is also understood to mean mobilization, war and threat of war, riot, strike, terrorist acts, demonstrations, lack of personnel, business and transport failures of any kind, breach of contract by suppliers and subcontractors, epidemics, obstacles caused by measures, laws or decisions by international, national or regional (government) agencies, fire, explosion, frost, snow nuisance, flooding, storm damage, and other natural disasters.
2. If Med Fruit cannot timely comply with the agreement due to force majeure, Med Fruit has the right to perform the agreement at a later time or to regard the agreement as dissolved, at the discretion of Med Fruit. Med Fruit is entitled in these or such cases, wholly at the discretion of Med Fruit, to dissolve the agreement after a reasonable period without any obligation to pay compensation or to demand the agreement to be adapted to the circumstances.
Article 10 Non-performance and dissolution
1. Without prejudice to the provisions of the Dutch Civil Code, Med Fruit also has the right to suspend the concluded agreement or to dissolve it in full or in part, at the discretion of Med Fruit, in case of default by the customer. In that case, Med Fruit is entitled to compensation for all damages suffered by Med Fruit.
2. Med Fruit also has the rights referred to in clause 1 of this article if the customer is declared bankrupt, if the customer has applied for suspension of payments or a judicial debt restructuring scheme, one’s real estate has been seized, one’s company has entered into liquidation or has been acquired by a third party or parties or if the customer has the intention to leave the Netherlands to establish residency elsewhere. In all these cases, all claims Med Fruit has on the customer will be due and payable immediately.
Article 11 Conversion provision
1. If a provision of these terms and conditions is wholly or partially qualified by the court as unreasonably onerous, it will be deemed to have been converted into a provision which, insofar as possible while retaining its contents and scope, will not be regarded as unreasonably onerous.
2. If a provision of these terms and conditions is qualified by the court as unreasonably onerous and clause 1 of this article cannot apply, this will not affect the validity of the other provisions of these general terms and conditions.
Article 12 Transfer and lapse of rights
1. Med Fruit is authorized to transfer its rights under agreements to third parties in whole or in part.
2. Any legal claim against Med Fruit will lapse if legal proceedings have not been instituted against Med Fruit within 12 months of receiving the claim relating to that legal claim.
Article 13 Applicable law, disputes, and competent court
1. Dutch law exclusively applies to agreements concluded between Med Fruit and the customer.
2. If a dispute arises between Med Fruit and the customer about the establishment, interpretation, performance or non-performance, incorrect or late performance of an agreement concluded between the parties or other legal relationship or if one of the parties is of the opinion that such a dispute exists, parties are obliged to try to reach agreement by negotiation, before submitting the dispute to the civil court.
3. The judge in Amsterdam has exclusive jurisdiction to hear disputes from agreements concluded with Med Fruit. Nevertheless, Med Fruit has the right to submit a dispute for decision to the competent court in the place of residence of the customer.
Article 14 Location general terms and conditions
1. These general terms and conditions have been drawn up per 01-11-2019. Applicable is always the last deposited version or the version that applied at the time of the establishment of the agreement with Med Fruit.
Disclaimer: The Dutch language version of these General Terms and Rates shall be controlling in all respects, notwithstanding any translation of these General Terms and Rates made for any purpose whatsoever.