Article 1: Definitions

In these general terms and conditions of sale (“GTCS”), the following terms shall have the meanings set out below:

Fruitful-Berries B.V., a private company with limited liability under Dutch law, having its registered office in Panningen and its principal place of business at Venrayseweg 106B (5928 RH) Venlo, Chamber of commerce number 81403410;

the Person with whom FB has concluded an Agreement or with whom FB is negotiating an Agreement;
Parties: FB and the Buyer;

every agreement between the Parties, irrespective of whether it is a framework or individual agreement, regarding the supply of goods to the Buyer against payment of a (fixed) price in money (‘contract of sale’);

Ex Works as defined in the Incoterms 2020 or any newer version of the Incoterms;

all goods that are the subject of an Agreement;

a natural or legal person or company without legal personality;

In these GTCS the terms ‘written’ or ‘in writing’ also mean by fax, by e-mail, by WhatsApp or other (mobile) chat application.

Article 2: Applicability

  1. These GTCS, with the explicit exclusion of all other general terms and conditions, are applicable to all Agreements. If FB at any time does not require strict compliance with these GTCS, this does not mean that FB waives its right to require strict compliance with these GTCS at a later moment or in future cases. Provisions deviating from these GTCS shall only be binding if agreed in writing and shall only apply to that specific case.
  2. Should one or more of the provisions of these GTCS be void (nietig) or be declared null and void (vernietigd), the remaining provisions of these GTCS will continue to apply. The void or voided provisions will be replaced by valid provisions that, taking into consideration the object and purport of these GTCS and the Agreement(-s), deviate as little as possible from the original provisions.
  3. FB is entitled to make amendments to these GTCS.

Article 3: General terms

  1. All offers by FB will be without any obligation. FB reserves the right to revoke any offer made by it within one (1) working day if the Buyer has not yet accepted the offer within that period.
  2. Any acceptance by the Buyer that deviates from the offer by FB, whether or not on subordinate points, will in any case be considered a rejection of this offer and as a new offer by the Buyer. An Agreement will only be concluded in accordance with this new offer following written acceptance by FB.
  3. If FB concludes an Agreement with two or more Buyers, they shall always be jointly and severally liable towards FB for all obligations ensuing from the Agreement.
  4. FB will be entitled, without stating reasons, not to accept orders or assignments.

Article 4: Prices

  1. Prices are stated in euros unless the Parties agree otherwise in writing.
  2. Prices are exclusive of VAT and other taxes and levies.
  3. Unless explicitly agreed otherwise, the prices stated or agreed on by FB apply to delivery EXW.
  4. If the Buyer, after the Agreement has been concluded, wishes to alter the packaging of the products, FB is entitled to charge the extra (re-)packaging costs to the Buyer.

Article 5: Payment

  1. FB’s invoices shall be paid within the period stated on the invoices. Payment shall be made unconditionally without suspension (opschorting), discount or offsetting (verrekening) for whatever reason.
  2. The Buyer shall be in default (in verzuim) by the expiry of the payment term without any notice of default being required.
  3. In case of default the Buyer will be payable a default interest on the invoice amount or the unpaid part thereof in the amount of the statutory commercial interest (wettelijke handelsrente), to be calculated from the due date until the date of payment.
  4. If the Buyer has no (sufficient) credit insurance (kredietverzekering), FB is entitled to demand an advance payment or a bank guarantee before delivery of the Products to the Buyer. FB is also entitled to demand immediate payment of the Buyer of the amount in excess of the amount covered by the credit insurance of the Buyer and to suspend or postpone further deliveries to the Buyer when this amount is not paid in time to FB.
  5. All costs incurred by FB in connection with the collection of invoices and/or the assessment of loss and liability and/or the collection of damages, including but not limited to the actual costs of attorneys, bailiffs, experts and translators incurred by FB, will be borne by the Buyer.
  6. The extrajudicial collection costs owed by the Buyer shall be at least 15% on the first EUR 5.000,00 (with a minimum of EUR 250,00), 10% on the excess up to EUR 10.000,00, 8% on the excess up to EUR 20.000,00, 5% on the excess up to EUR 60.000,00 and 3% on the excess above EUR 60.000,00.
  7. In case the Buyer is in default, FB has the right to suspend or postpone future deliveries until the moment the Buyer has fulfilled its payment obligations in full, including the payment of interest in accordance with Article 5.3.

Article 6: Delivery

  1. Unless explicitly agreed otherwise, delivery will take place EXW.
  2. If FB, notwithstanding par. 1 of this article, arranges transport to the premises of the Buyer, and the delivery or the unloading of the Products is delayed with more than one (1) hour due to the Buyer, FB is entitled to charge the extra transport costs to the Buyer.
  3. The delivery times stated by FB are always approximations and shall never be considered final deadlines.
  4. If delivery is made earlier or later than indicated, the Buyer is nevertheless obliged to accept the delivery of the Products. If the Products are not accepted within twenty four (24) hours after having been made available to the Buyer, the Buyer shall be in default without any notice of default being required and FB shall be entitled to terminate (ontbinden) the Agreement and claim compensation from the Buyer without prejudice to its other rights, including the right to store the Products at the Buyer’s risk and expense.
  5. FB’s invoices shall be paid within the period stated on the invoices. Payment shall be made unconditionally without suspension (opschorting), discount or offsetting (verrekening) for whatever reason.

Article 7: Inspection and complaints

  1. Unless explicitly agreed otherwise, the Buyer is obliged to check the Products for quality and any external and internal defects immediately upon delivery.
  2. With a view to the inspection of the internal quality of the Products, the Buyer must cut them, or have them cut, on a random basis and check them, or have them checked, for the presence of foreign bodies and other defects.
  3. Complaints about the quantity delivered and about visible defects, including internal defects discovered during the inspection referred to in par. 2, or which should reasonably have been discovered, must be reported to FB in writing within 24 hours after the inspection, subject to forfeiture of all rights.
  4. A violation if the Buyer’s duty of inspection and timely complaint will result in the forfeiture of all rights, regardless of whether FB’s actual interests have been prejudiced as a result of this violation.
  5. If the Buyer violates its duty of inspection and timely complaint and FB nevertheless handles a complaint, this is done subject to all rights and FB’s efforts shall be regarded as a goodwill gesture without acceptance of any obligation or liability.

Article 8: Retention of title

  1. Title to the Products delivered by FB is explicitly reserved by FB until full payment has been made of all its claims against the Buyer under the Agreement, including any interest and costs due.
  2. The Buyer undertakes to make the unpaid Products available to FB when first requested by FB.
  3. As security for the payment of all that the Buyer owes FB at any time, FB will have a right of retention and a right of pledge (pandrecht) in respect of all the items of the Buyer that FB retains or will obtain at any point in time.

Article 9: Liability

  1. FB’s total liability shall be limited to the amount that is paid out in the particular case under the liability insurance that it has concluded, increased by the amount of the excess that is not for the account of the insurers according to policy conditions.
  2. If no payment is made under said insurance policy, FB’s total liability shall be limited to the amount of the net invoice value of the relevant Products, being the price excluding turnover tax and other taxes and levies and excluding transport costs.
  3. FB shall not be liable for any shortcomings of third parties that it engaged with in the performance of an Agreement.
  4. The Buyer shall indemnify (vrijwaren) FB against all third-party claims, on whatever grounds, for payment of (contractual) fines, compensation or loss (of profits).

Article 10: Force Majeure

  1. In case of force majeure, FB is released from the performance of its obligations under the Agreement, without the Buyer being entitled to any compensation whatsoever.
  2. The term ‘force majeure’ is taken to mean any circumstance beyond the control of FB, as a result of which the performance of its obligations to the Buyer is reduced, wholly or in part, or as a result of which RB cannot reasonably be required to comply with its obligations, regardless of whether such circumstance could have been foreseen at the time the Agreement was concluded. These circumstances include, for instance, industrial action, a delay in the supply of products, contingencies at FB and/or its suppliers, failed harvest, extreme weather conditions, (civil) war, disasters, pandemics, lockouts, and other business interruptions and measures taken by government bodies.

Article 11: Suspension and termination

  1. Without prejudice to other rights under the law and/or the Agreement and/or these GTCS, FB is entitled to suspend (opschorten) its obligations or, without any notice of default or judicial intervention being required, terminate (ontbinden) the Agreement in full or in part by means of a writer notice to the Buyer if:
    1. the Buyer fails to fulfil any of its obligations or fails to fulfil them properly in time;
    2. FB has good grounds to fear that the Buyer will default in the fulfilment of one or more of its obligations;
    3. the Buyer is declared bankrupt or its bankruptcy has been applied for;
    4. the Buyer has been granted a, whether or not provisional, suspension of payments or an application has been filed for that purpose;
    5. the Buyer is declared subject to a statutory debt rescheduling scheme or an application has been filed for that purpose;
    6. the business of the Buyer is liquidated; or
    7. the assets of the Buyer are subject to executory attachment (executoriaal beslag) or subject to prejudgment attachment (conservatoir beslag) which is not lifted within one month of the date of attachment.
  2. If FB terminates the Agreement in full or in part, it is not obliged to pay any compensation and all its claims against the Buyer will immediately become payable in full.

Article 12: Applicable law and disputes

  1. All Agreements and transactions shall be governed by Dutch law with the inclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
  2. Any dispute that may arise between FB and the Buyer will be exclusively adjudicated by the District Court of Limburg, location Roermond, without prejudice to the right of FB to summon the Buyer to appear before the court which has jurisdiction according to the law or convention.

Version 1.0 – dated May 2022