GENERAL TERMS AND CONDITIONS OF K.G. FRUIT B.V.

K.G. Fruit B.V. with registered office at Oostambachtweg 1, 4421 RM Kapelle (KvK (Dutch Chamber of Commerce) number 50101684) and its legal successors and/or its affiliated enterprises, hereinafter referred to as: ‘K.G. Fruit B.V.’, has adopted the following General terms and conditions:


Article 1 Definitions

  1. Co-contracting party: each natural person or legal entity that K.G. Fruit B.V. enters into an agreement with or that K.G. Fruit B.V. submits an offer and/or quotation to, and apart from these, his representative(s), agent(s), successor(s) in title and heirs/beneficiaries;
  2. Agreement: each agreement formed between K.G. Fruit B.V. and the Co-contracting party,each amendment or supplement to it, as well as all juridical acts and other acts to prepare and execute this Agreement;

Article 2 Applicability

  1. These General terms and conditions apply to all offers and quotations made by and Agreements entered into by K.G. Fruit B.V., as well as to accepted assignments. As a result, these General terms and conditions apply to all juridical acts, other acts and omissions of K.G.
    Fruit B.V. and its Co-contracting party in this regard.
  2. Agreements as referred to in paragraph 1 of this Article include purchase agreements, sales agreements, consignment agreements, framework agreements and related agreements. 
  3. The Co-contracting party permits K.G. Fruit B.V. to use third parties who are not employees of K.G. Fruit B.V to execute the provisions in the Agreement. The General terms and conditions also apply to juridical acts performed by these third parties in the context of the fulfilment of obligations that K.G. Fruit B.V. is subject to by virtue of the Agreement. 
  4. Derogations from and/or supplements to any provision in these General terms and conditions are solely and only binding on K.G. Fruit B.V. if these derogations and/or supplements have been expressly agreed without reservation in writing between K.G. Fruit B.V. and the Co-contracting party. Any derogations and/or supplements agreed only relate to the Agreement in question. 
  5. If and in so far as the Co-contracting party - when accepting a quotation or offer or entering into an Agreement - refers to general terms and conditions that are not the General terms and conditions of K.G. Fruit B.V. in order for his (the Co-contracting party’s) general terms and conditions to apply to the Agreement then general terms and conditions other than the General terms and conditions of K.G. Fruit B.V. will only apply to the agreement if K.G. Fruit
    B.V. has expressly accepted these general terms and conditions of the Co-contracting party without reservation and in writing.
  6. If any provision of these General terms and conditions - after the intervention of a judicial authority - proves to be null and void then only the provision in question will be excluded  from application. All other provisions remain in force in full.

Article 3 Offers and prices

  1. All agreements entered into by K.G. Fruit B.V. agreements are considered to have been formed at the place where K.G. Fruit B.V. has its registered office, namely Kapelle, both in respect of the execution of and payment of the agreement.
  2. All amounts quoted in quotations, offers, Agreements and assignments are stated in euros excluding turnover tax unless the parties have agreed otherwise in writing. Furthermore, all stated amounts are inclusive of transportation and packaging unless the parties have agreed otherwise in writing. 
  3. All offers made by K.G. Fruit B.V. are made entirely without obligation.
  4. K.G. Fruit B.V. reserves the right to refuse to award assignments without giving reasons for
    doing so.
  5. K.G. Fruit B.V. is not obliged to stand by an offer and/or an agreement at a stated price if this
    price is based on a misprint and/or writing error.

Article 4 Agreement.

  1. If a quotation contains an offer made without obligation that is accepted by a third party (the Co-contracting party) then K.G. Fruit B.V. has the right to withdraw the offer no later than two working days after receiving the acceptance.
  2. The Co-contracting party will receive from K.G. Fruit B.V. either a written assignment confirmation or a written record of the Agreement. This written record may consist of the invoice and/or assignment note. 
  3. If the parties have agreed further and/or supplementary arrangements or amendments after the Agreement has been formed then these will only be binding if and in so far as these arrangements have been set down in writing. Here too, the written record may consist of the invoice and/or assignment note.

Article 5 Delivery

  1. The agreed delivery time is not a strict deadline unless the parties have expressly agreed otherwise. 
  2. A delay in the delivery - in so far as remaining within the limits of reasonableness - does not entitle the Co-contracting party to terminate the Agreement or demand any compensation.
  3. The quantity delivered by K.G. Fruit B.V. is considered - in terms of number, weight and requirements prescribed under public and/or private law - to comply with that which the  parties agreed in this regard unless the Co-contracting party provides evidence to the contrary. In this way, the parties agree an explicit evidentiary presumption in this regard.
  4. Delivery takes place at the client unless the parties have agreed otherwise in writing in this regard. The moment of delivery is the moment at which the items are delivered at the client’s premises. 
  5. If the parties have agreed that K.G. Fruit B.V. is to store the items (either on its own premises or at those of a third party) that it is to deliver then the delivery takes place at the moment in time when the items are stored. 
  6. K.G. Fruit B.V. is at all times entitled before fulfilling the obligations that it is subject to by virtue of the Agreement to demand sufficient collateral for the fulfilment of the Cocontracting party’s payment obligations. 
  7. If the Co-contracting party still has any payment obligation in respect of K.G. Fruit B.V., in particular if invoices of K.G. Fruit B.V. remain unpaid in whole or part by the Co-contracting party then K.G. Fruit B.V. is entitled to suspend the delivery obligations until the Cocontracting party has fulfilled all his obligations.

 Article 6 Acceptance and complaints

  1. Immediately after delivery by K.G. Fruit B.V. of the agreed items, the Co-contracting party must examine and check these items. The Co-contracting party must check whether the delivered items comply with the provisions in the Agreement, namely:
    a. whether the correct items have been delivered;
    b. whether the delivered items comply with the quality requirements to be laid down and agreed in this regard or with the requirements that must be set for normal usage and/or for commercial purposes;
    c. whether the delivered items in terms of quantity (number, volume, weight) correspond with that which was agreed between the parties in this regard. If the derogation established by the Co-contracting party is less than 10% then the Co-contracting party is obliged to accept the delivered items completely, this against a proportionate reduction in the agreed price.
  2. If delivery of the items takes place ex warehouse then the Co-contracting party must check the delivered items in K.G. Fruit B.V.’s salesroom.
  3. Any shortcomings and objections that do not relate to circumstances as set out in paragraph 1 of this Article under c. must be reported to K.G. Fruit B.V. in writing as soon as they are found but at the latest no later than 8 hours after delivery to the correct delivery address. If K.G. Fruit B.V. does not receive a complaint immediately after delivery of the items then the goods will be considered to have been delivered in accordance with the provisions in the Agreement and without any shortcomings.
  4. Complaints relating to defects that are not immediately visible must be reported to K.G. Fruit B.V. in writing as soon as possible after they have been found so that K.G. Fruit B.V. can investigate ‘on the spot’ whether the complaints made are accurate. The Co-contracting party must allow K.G. Fruit B.V. to assess whether the Co-contracting party’s complaint is accurate. If K.G. Fruit B.V. has failed to receive a written complaint from the Co-contracting party no later than 8 hours after delivery then the shortcoming and/or the defect must be considered to have not been present at the time of the delivery; instead, the parties will assume and agree that it is certain that that this shortcoming and/or this defect occurred after delivery.
  5. The provisions in this Article apply in full if the items to be supplied by K.G. Fruit B.V. for the Co-contracting party are delivered to a third party. In this case, on no account can the Co-contracting party argue in respect of K.G. Fruit B.V. that the reason why he did not examine and check the delivered items was because they were stored elsewhere, namely at a third party.
  6. The Co-contracting party is obliged at all times to ensure that the items are preserved as a prudent debtor and/or possessor would preserve them.

 Article 7 Payments

  1. The Co-contracting party must pay the agreed price after receiving the invoice that relates to the delivery - without making a deduction or invoking setoff - no later than 28 days after  invoice date, unless this arrangement is departed from.
  2. Setoff by the Co-contracting party of the amounts invoiced by K.G. Fruit B.V. against a counterclaim asserted by the Co-contracting party - or suspension of payment by the Cocontracting party in connection with a counterclaim that the latter has asserted - is not permitted unless K.G. Fruit B.V. has expressly and without reservation acknowledged its liability to pay the counterclaim or unless the existence of the counterclaim has been irrevocably established in law. 
  3. If the payment deadline is exceeded then without prior notice of default the Co-contracting party owes penalty interest of 0.75% per month on the outstanding amount, this without prejudice to K.G. Fruit B.V.’s other rights.
  4. If the Co-contracting party fails to pay the outstanding amounts to K.G. Fruit B.V. even after he has been given notice of default by K.G. Fruit B.V. then in addition to the total amount he then owes - this consisting of the outstanding amounts plus the interest owed - he will also be obliged to reimburse the extrajudicial collection costs. 
  5. In all cases, payments made by the Co-contracting party will first be used to pay all interest and costs owed and then to pay the due and payable invoices that have been outstanding the  longest. This is no different if the Co-contracting party states that the payment relates to a later invoice. \

Article 8 Retention of title

  1. Items delivered by K.G. Fruit B.V. remain its property until such time as the full payment of all claims that K.G. Fruit B.V. has on the Co-contracting party by virtue of agreements entered into between them, this including interest and costs. 
  2. The Co-contracting party is solely authorised to resell items delivered by K.G. Fruit B.V. that are subject to the retention of title stated in paragraph 1 of this Article if reselling is part of the Co-contracting party’s normal business operations.
  3. If the Co-contracting party fails to fulfil his obligations or if K.G. Fruit B.V. has well-founded fears that the Co-contracting party is unable to fulfil his obligations under the Agreement or else there is a suspicion that the Co-contracting party does not wish to fulfil the obligations that he is subject to then K.G. Fruit B.V. is entitled to fetch back (or to arrange the fetchingback of) its delivered items - that are subject to the retention of title stated in paragraph 1 of this Article - from the Co-contracting party or from the third party that is keeping the items for the Co-contracting party. The Co-contracting party is obliged to cooperate with such an operation on the part of K.G. Fruit B.V.
  4. If third parties wish to establish or assert any rights to the items delivered by K.G. Fruit B.V. under retention of title then the Co-contracting party must inform K.G. Fruit B.V. of this immediately. Furthermore, the Co-contracting party must inform this third party about the circumstance that the items have been delivered under retention of title. The Co-contracting party must provide the third party with the agreement entered into between the parties that shows that a retention of title has been invoked in respect of the delivered items.
  5. The Co-contracting party is obliged to collaborate with all measures that K.G. Fruit B.V. wishes to take to protect its property rights for the items it has delivered.

Article 9 Liability and risk

  1. If the Co-contracting party has items delivered by K.G. Fruit B.V. in his possession that are owned by K.G. Fruit B.V. (including packaging) and/or that come under the retention of title as referred to in Article 9 of these General terms and conditions then the Co-contracting party is liable for losses/damage caused by and/or with these items, this from the moment in time that the items have been delivered to him until the moment in time that these items are returned or the ownership of these items passes.
  2. Furthermore, the Co-contracting party is liable - if he has items in his possession that are owned by K.G. Fruit B.V. (including packaging) and/or that come under the retention of title as referred to in Article 9 of these General terms and conditions - for losses incurred by K.G. Fruit B.V. as the result of damage to, loss of or the destruction of these items and this loss arose in the period of time between the moment in time when K.G. Fruit B.V. delivered the items and the moment when these items were returned or the ownership of these items passes.
  3. If K.G. Fruit B.V. as the result of circumstances to be attributed to the Co-contracting party must utilise its retention of title but still incurs losses then the Co-contracting party is liable for the losses incurred by K.G. Fruit B.V.
  4. The Co-contracting party will inform K.G. Fruit B.V. immediately if he has items in his possession in the context of the execution of the Agreement that belong to K.G. Fruit B.V. (including packaging) and/or that come under the retention of title as referred to in Article 9 of these General terms and conditions should the items that K.G. Fruit B.V. delivered to him be stolen, lost or damaged. In addition, in the case of theft, loss or damage resulting from wilful damage the Co-contracting party will immediately report this to the police of the municipality in which the theft took place or wilful damage occurred. The Co-contracting party must provide K.G. Fruit B.V. with a copy of this report to the police.
  5. If K.G. Fruit B.V. has delivered items to the Co-contracting party that are owned by a third party then the Co-contracting party indemnifies K.G. Fruit B.V. against all claims made by this third party in connection with the losses caused by and/or with the items that K.G. Fruit B.V. delivered to the Co-contracting party or with losses relating to the items that K.G. Fruit B.V. delivered to the Co-contracting party.
  6. If the Co-contracting party or a third party to whom the Co-contracting party has supplied onwards the items delivered by K.G. Fruit B.V. carries out (or arranges the carrying-out of) a recall operation then K.G. Fruit B.V. can only be held liable for all or part of the related costs, if
    I) it is established that K.G. Fruit B.V. is liable for the circumstance that led to the recall, and
    II) K.G. Fruit B.V. was consulted in a timely way (as referred to in Article 7) and was allowed to comment before the recall was carried out, as well as III) it is established that the Cocontracting party acted as a colleague that acted reasonably and showed reasonable competence and tried to keep the costs associated with the recall as low as possible.
  7. The Co-contracting party indemnifies K.G. Fruit against all claims made by third parties for whatever reason that are connected or related in any way with deliveries made under the agreement, this including but not limited to claims for compensation or losses, as well as for all additional costs and interest.
  8. K.G. Fruit B.V. is on no account liable for any losses in respect of the Co-contracting party or third parties, apart from in the case of wilful misconduct or gross negligence on the part of K.G. Fruit B.V. or its company management. K.G. Fruit B.V. is not liable for losses caused by wilful misconduct or gross negligence on the part of its employees and/or third parties for whom K.G. Fruit B.V. is or would be liable according to the law.
  9. K.G. Fruit B.V. is on no account liable for consequential loss, this including in any case lost profits, losses incurred, costs incurred, missed assignments, missed savings and the fact that marketing and other promotional activities could not proceed at the desired time or at all.
  10. If K.G. Fruit B.V. is liable for any losses then each liability of K.G. Fruit B.V. is limited to a maximum of the amount paid out in the case in question under K.G. Fruit B.V.’s business liability insurance policy plus the excess under this insurance policy. If for whatever reason no payout can be made under this insurance policy then each liability is limited to a maximum of the amount of the invoice that relates to the Agreement on the basis of which the Cocontracting party is claiming.
  11. K.G. Fruit B.V. stipulates all statutory and contractual rights that K.G. Fruit B.V. can invoke to fend off its liability, including for all parties involved in the execution of the Agreement. 

Article 10 Force majeure

  1. In the case of force majeure, K.G. Fruit B.V. is entitled to either suspend execution of the Agreement or to terminate the Agreement in whole or part, without the Co-contracting party being able to assert any claim for compensation in this regard in respect of K.G. Fruit B.V. 
  2. Force majeure on the part of K.G. Fruit B.V. is considered to include the following: 
    • strikes by the employees of K.G. Fruit B.V. or by third parties it brings in to execute the Agreement;
    • sickness of employees of K.G. Fruit B.V. or of third parties it brings in to execute the Agreement;
    • measures and/or bans imposed by the Dutch and/or a foreign government that K.G. Fruit B.V. is bound by;
    • unforeseeable and unpredictable traffic obstructions;
    • accident(s) involving a means of transportation deployed to execute the Agreement as well as unforeseen technical defects to these means of transportation;
    • attributable failure in the performance on the part of K.G. Fruit B.V.’s suppliers;
    • theft of items needed to execute the Agreement;
    • fire, explosions or natural force;
    • as well as all other unforeseen circumstances that prevent K.G. Fruit B.V. from performing the Agreement in a timely way and properly and that are not at K.G. Fruit B.V.’s expense and risk.
  3. If at the time the force majeure occurs K.G. Fruit B.V. has already fulfilled or can only fulfil part of its obligations then it is entitled to invoice separately for that part that it has already delivered or will deliver. The Co-contracting party is then obliged to pay the invoice as if it related to a separate agreement. 
  4. All agreements that relate to the sale of agricultural products are made under the ‘harvest proviso’. This means that if the quality and/or quantity of agricultural products is so much less than may have been reasonably expected at the time that the agreement was entered into - due to a disappointing harvest and/or product rejection by the agencies competent in this regard - then K.G. Fruit B.V. is entitled to reduce the quantities it sells accordingly. Furthermore, by delivering the quantity reduced in this way, K.G. Fruit B.V. will have fully fulfilled its delivery obligations. In that case, K.G. Fruit B.V. is not obliged to deliver replacement agricultural products and is not liable for any losses whatsoever either. 

Article 11 Default and termination

  1. If the Co-contracting party fails to fulfil at all or properly or in a timely way any obligation that may arise for him under the Agreement entered into with K.G. Fruit B.V. or by law, this including the obligation to make prompt payment as set out in Article 8 of these General terms and conditions then the Co-contracting party is in default without notice of default and K.G. Fruit B.V. is entitled to suspend execution of the Agreement and/or to terminate this Agreement and any directly related Agreements in whole or part without K.G. Fruit B.V. being obliged to pay any compensation and without prejudice to the other rights that K.G. Fruit B.V. is entitled to.
  2. If the Co-contracting party is in default then he owes K.G. Fruit B.V. interest at the statutory commercial interest rate as well as all judicial and extrajudicial costs that K.G. Fruit B.V. reasonably has to incur in order to establish the liability of the Co-contracting party and/or to obtain settlement of its claim and that come under the scope of Article 6:96 paragraph 2 BW (Dutch Civil Code).
  3. In the case of a (provisional or full) moratorium or insolvency of the Co-contracting party or the closing down or liquidation of the Co-contracting party’s business then all Agreements made with the Co-contracting party are terminated by operation of law unless K.G. Fruit B.V. informs the Co-contracting party within a reasonable period of time that it is demanding performance of (all or part of) the Agreement(s) in question, in which case K.G. Fruit B.V. is entitled - without notice of default - to suspend execution of the relevant Agreement(s) until the payment is adequately secured, this without prejudice to the further rights that K.G. Fruit B.V. is entitled to.
  4. K.G. Fruit B.V. is entitled to terminate the Agreement if the Co-contracting party is in a state of permanent force majeure. The Co-contracting party will then reimburse K.G. Fruit B.V. for all costs incurred and still to be incurred by K.G. Fruit B.V.
  5. In each of the cases referred to in paragraphs 1, 2, 3 and 4 of this Article, all claims made by K.G. Fruit B.V. on the Co-contracting party are due and payable immediately and the Cocontracting party is obliged to immediately return any leased or unpaid items.
  6. The Co-contracting party must inform K.G. Fruit B.V. without delay if movable or immovable items are seized that belong to K.G. Fruit B.V. that the Co-contracting party has in his possession in the context of the execution of the Agreement.
  7. In the case of insolvency or a moratorium, the Co-contracting party must immediately inform K.G. Fruit B.V. about this and show a bailiff, receiver or administrator the Agreement without delay, pointing out K.G. Fruit B.V.’s property rights when doing so.

Article 12 Packaging

  1. When K.G. Fruit B.V. delivers its items, it uses packaging. The types of packaging used include pallets, crates and EPS packaging. If K.G. Fruit B.V. charges a deposit for this then the packaging will be taken back at the invoice price applicable at the moment in time of return. Note that if an item is denominated in foreign currency then the packaging will be taken back at the exchange rate applicable at the moment in time of delivery. A fixed expense reimbursement may be  harged for accepting this returned packaging in accordance with the  relevant applicable arrangement. The Co-contracting party will be provided with details of this arrangement upon his request.
  2. The packaging that the Co-contracting party wishes to hand back must be so clean and hygienic that without any further work on the part of K.G. Fruit B.V. it is suitable for using with fresh, edible horticultural products. 
  3. If the packaging is to be returned using K.G. Fruit B.V.’s own means of transport then the Cocontracting party must ensure that the packaging is sorted and ready for transportation. 
  4. Packaging not delivered by K.G. Fruit B.V. will only be taken back if and in so far as the products in question are part of K.G. Fruit B.V.’s own product range and the packaging is in good condition. 

Article 13 Industrial and intellectual property rights

  1. K.G. Fruit B.V. expressly reserves any rights of intellectual and/or industrial property (trademarks) relating to its delivered products. 
  2. The Co-contracting party’s usage of products delivered by K.G. Fruit B.V. must not infringe intellectual and/or industrial property rights of a third party. The Co-contracting party indemnifies K.G. Fruit B.V. against any third-party claims arising from an infringement of intellectual and/or industrial property rights that results from the use of items delivered by K.G. Fruit B.V. and that occurs after K.G. Fruit B.V. delivered the items to the Co-contracting party.

Article 14 Applicable law

  1.  All legal relationships between K.G. Fruit B.V. and the Co-contracting party are governed by Dutch law with the exclusion of the provisions of the Vienna Sales Convention.

Article 15 Disputes

  1. Disputes arising from an assignment, quotation, offer or Agreement to which these General terms and conditions apply, including conflicts related to these General terms and conditions, will be solely resolved by the competent court in the district where K.G. Fruit B.V. has its registered office, on the understanding that this choice of forum does not affect K.G. Fruit B.V.’s right to resolve a dispute by arbitration or binding decision.
  2. Contrary to the provisions in paragraph 1 of this Article, the parties may agree in writing to leave the resolution of the dispute to the competent court in another district

Article 16 Filing

  1. These General terms and conditions have been filed with the district court of The Hague under number 33/2018, with a copy of them being sent to the Co-contracting party free of charge on the latter’s initial request.