General Terms and Conditions United Fruit Growers BV (referred to as UFG BV here and elsewhere)

In these terms and conditions, the following definitions shall apply:

1. Agreement: any assignment to and/or agreement with UFG BV concerning the sale of goods and/or the performance of services, as well as any changes or supplements to the agreement, and all actual and legal acts to prepare and implement that agreement;
   
   
2. Buyer: any individual or entity with whom UFG BV has concluded an agreement for the provision and/or delivery of goods or services (of any nature whatsoever), or to whom UFG BV send an offer or quotation;
   
   
3. UFG BV: the private limited liability company UFG BV, registered under commercial registry number at chamber of commerce nr. 75820102, having its registered office in Op het postadress KvK, Ceresstraat 13, 4811CA Breda, Netherlands;
   
   
4. Offer: all quotations and offers of UFG BV to Buyer;
   
   
5. Parties: UFG BV and Buyer;

 

Applicability

1. These general terms and conditions form part of all Offers made by UFG BV, all orders at UFG BV and all Agreements concluded with UFG BV regarding the delivery of products and/or services by UFG BV, as well as all other legal relationships arising thereout;
   
   
2. Applicability of other general terms and conditions, including those of the Buyer, are explicitly excluded, unless agreed otherwise by the Parties in writing.
   
   
3. If there is a conflict between these general terms and conditions and the Agreement, the Agreement will take precedence over those of these general conditions insofar as there is a conflict.
   
   
4. If any provision of these terms and conditions is null or void, the remaining provisions of these terms and conditions will remain in full force and the Buyer and UFG BV will enter into consultation in order to agree on new provisions replacing the null or void provisions, whereby the purpose and scope of null and void provision are taken into account as much as possible.
   
   
5. UFG BV reserves the right to change these terms and conditions. The amended terms and conditions take effect at the time the Buyer had the reasonable opportunity to become aware of this.

Offers and Acceptance

1. All Offers from UFG BV are without any obligation, unless otherwise agreed by the Parties in writing. UFG BV has the right to withdraw its Offer within 3 working days after receipt of the acceptance by the Buyer.
   
   
2. All information and specifications issued with offers from UFG BV are approximations only. Deviations up to 10% shall be permitted as a matter of course.
   
   
3. UFG BV is not obliged to honour an offer an/or execute an Agreement against a stated prize, if this prize is based on a printing and/or writing error.
   
   
4. An acceptance by the Buyer that, whether or not on minor points, deviates from the Offer of UFG BV, always counts as a rejection of this Offer and as a new offer from the Buyer. An Agreement is only concluded in accordance with this new offer after written acceptance by UFG BV.
   
   
5. The Agreement will be concluded:
   
   
6. 3 working days have passed after UFG BV has received the acceptance from the Buyer and UFG BV did not withdraw its offer during this period;
   
   
7. UFG BV has confirmed the Agreement in writing;
   
   
8. UFG BV makes a start on the execution of the Agreement.
   
   
9. Any verbal agreement by the Buyer to proceed with the supply of goods or services be deemed to be on the basis that these terms and conditions form part of such supply.
   
   
10. All Agreements for the delivery of agricultural products by UFG BV shall be subject to harvest results. If fewer products are available than could reasonably be expected upon entering into the Agreement due to a disappointing harvest in terms of volume and/or quality or due to the products being rejected by the competent authorities, UFG BV shall be entitled to reduce the quantities it sells accordingly. UFG BV shall have fulfilled its obligation to deliver by delivering the quantities for delivery thus reduced. In this case, UFG BV shall not be obliged to deliver any replacement agricultural products, nor shall it be responsible for any loss whatsoever.
    
    
11. The Buyer is not permitted to transfer the Agreement or one or more of his rights and/or obligations under the Agreement without the prior written consent of UFG BV. In addition to the contractual effect, this prohibition also has the property law effect (as referred to in Section 3:83 (2) of the Dutch Civil Code).

Prices

1. All prices shall be in euros and exclusive of value added tax, other taxes and levies, packaging and transportation costs/documentation, unless the Parties have agreed otherwise in writing.
   
   
2. The prices are based on cost price determining factors applicable at the time of conclusion of the Agreement. If after conclusion of the Agreement, yet before the delivery of the products, these factors undergo a change outside the control of UFG BV, UFG BV is entitled to charge the costs resulting thereof to the Buyer.

Payment

1. UFG BV invoices shall be paid within the period as stated on the invoices and payment shall be made unconditionally without suspension, discount or offset for any reason.
   
   
2. The Buyer will be in default on expiry of the payment term, without any notice of default being required. During the period of default, the Buyer will owe late payment interest of 1% per month or a part thereof on the outstanding claims.
   
   
3. All internal and external costs of UFG BV related to the collection of invoices and/or determining the loss and liability and/or the collection of damages, including but not limited to the actual costs of attorneys, bailiffs and experts incurred by UFG BV, are for the account of Buyer
   
   
4. Upon request from UFG BV, which request can be made both prior to and during the Agreement, the Buyer will make a full or partial advance payment or, alternatively, provide sufficient security for the fulfilment of its obligations. “Sufficient security” shall in any case mean a bank guarantee to be provided at UFG BV first request issued by a first class bank totalling 110% of the amounts payable by the Buyer (100% of these amounts plus a 10% surcharge for interest).
   
   
5. UFG BV is entitled to retain goods, documents and monies from any person at the Buyer’s expense and risk until such time as the Buyer has fulfilled all its obligations on whatever basis to UFG BV. All goods, documents and monies that the UFG BV has received or will receive for any reason shall serve as security for all claims that it has or will acquire against the Buyer.
   
   
6. UFG BV shall be entitled at any time to offset any amounts that it owes the Buyer or any of its affiliated legal persons or companies, for any reason, against the amounts that UFG BV or any of its affiliated legal persons or companies claim from the Buyer or any of its affiliated legal persons or companies. The entitlement to offset within the meaning of this paragraph shall also apply if the payment of the claims is not yet enforceable.

 

Conformity, Delivery and Risk

1. The conformity of the products shall be assessed based on the legislation and regulations in the Netherlands at the time of delivery. UFG BV is not obliged to take any other legislation and regulations into account unless the Parties have agreed otherwise in writing.
   
   
2. The delivery times stated by the UFG BV are always approximations and shall never be considered final deadlines.
   
   
3. UFG BV is authorized, but never obliged, to deliver the products sold in parts and each part to be invoiced separately.
   
   
4. The products that UFG BV sells shall be delivered ex warehouse (Ex Works, EXW) unless the Parties agree in writing that the products will be delivered CPT the Buyer’s business premises or CPT another agreed destination. The risk shall pass to the Buyer at the point at which UFG BV makes the products available to the Buyer or, in case of delivery CPT, at the point at which UFG BV hands over the products to the first carrier. UFG BV is not obliged to insure the sold products for the duration of the transport. The terms “Ex-Works” and “CPT” shall be construed in accordance with the latest version of the Incoterms (Incoterms 2020 from International Chamber of Commerce).
   
   
5. If the Parties agree that UFG BV has to store products for the Buyer on either UFG BV premises or those of a third party and these products have not yet been delivered to the Buyer, the products shall be considered to have been delivered at the moment of storage. UFG BV is never obliged to insure the sold products for the duration of the storage.
   
   
6. The Buyer shall be obliged to accept the products purchased. The obligation to accept the products shall consist of: a) the performance of all actions that can reasonably be expected of the Buyer in order to enable UFG BV to deliver and b) accepting the products. If the products are not accepted within 6 hours after having been made available to the Buyer or, in the case of delivery CPT, immediately after arrival of the products at the place of destination, the Buyer shall be in default without any notice of default being required and UFG BV is without prejudice to its other rights, including the right to store the products at the expense and risk of the Buyer, entitled to terminate the Agreement and claim compensation.

Inspection and Complaints

1. Immediately following delivery of the products and therefore prior to the transport, the Buyer shall be obliged to carefully inspect, or have inspected, whether these products correspond to the Agreement in every way and in particular: a) whether the correct products have been delivered, b) whether the delivered products satisfy the quality requirements for normal use and/or for commercial purposes, c) whether the delivered products correspond to what the Parties agreed in that case as regards quantity (number, amount, weight), and d) regarding the examining of the internal quality of the products, the Buyer must cut them (or have them cut) and check them (or have them checked) for the presence of non-product components or other defects. If the buyer discovers any major temperature or defect issues then UFG BV should be informed immediately and delivery paperwork should be signed accordingly.
   
   
2. In the event of delivery up to less than 10% of the total quantity, the Buyer will be obliged to fully accept the delivery against a proportional reduction in the price. Complaints about the quantity delivered and about visible defects, including internal defects that were discovered during the inspection referred to in paragraph (a) of this article or should reasonably have been discovered, must, under penalty of forfeiture of all rights immediately after this inspection – and therefore prior to transport – be notified to UFG BV and subsequently be confirmed in writing within 6 hours, accurately stating the nature of the shortcoming.
   
   
3. UFG BV shall be notified in writing of any complaints regarding defects within 12 hours after the defects have been discovered or should reasonably have been discovered but no later than within twenty four hours of receipt of delivery stating precisely the nature of the defects. The Buyer can no longer claim that the products do not correspond to the Agreement once the stated complaints deadlines have expired. Any quality claim should be supported by a written QC report to detail information relating to the following typical areas of issue (this list is not exhaustive): Size, pressure, temperature, level of waste/defect, traceability and packing codes and photographic evidence.
   
   
4. Complaints regarding slight deviations and/or those normal in commerce and the sector and/or deviations in quality, size, weight, colour, quantity and suchlike that technically cannot be prevented shall not be admissible.
   
   
5. If UFG BV does not accept the Buyer’s complaint within 6 hours, the Buyer shall be obliged within 12 hours to have a certified expert carry out an independent assessment, subject to forfeiture of all rights. The deadlines stated in this paragraph shall commence at 07.00 (local time at the Buyer’s place of business) on the working day following the day on which the Buyer submitted the complaint. The Buyer shall give UFG BV the opportunity of being present or represented during the assessment. UFG BV shall be entitled to have a second assessment carried out.
   
   
6. The Buyer shall provide all necessary assistance for the investigation of the complaint. The Buyer’s complaint is not admissible if it fails to provide assistance or if the investigation is otherwise not or no longer possible.
   
   
7. If the Buyer’s complaint is founded, also taking into account the provisions in this article, UFG BV, after consultation with the Buyer, shall ensure delivery of the missing products, repair or replacement of the products delivered or adjustment of the price. UFG BV shall have no further obligation or liability. For full or partial dissolution of the Agreement, including reduction of the price, the written approval of UFG BV is required.
   
   
8. The Buyer shall at all times ensure that the products are maintained as expected of a careful debtor.
   
   
9. The Buyer is not free to return the products until UFG BV has agreed in writing. If the Buyer puts the returned products into storage or take these in by different means, this shall be for the Buyer’s expense and risk. Such measures shall never constitute approval or acceptance of returns.
   
   
10. If the Buyer fails to comply with the provisions of this article and UFG BV nevertheless deals with a complaint, UFG BV efforts shall be considered a courtesy without implying acceptance of any obligation or liability.
    
    
11. If a complaint turns out to be unfounded, UFG BV is entitled to charge the Buyer for the internal and external costs it incurs when dealing with the complaint.
    
    
12. Legal claims must, under penalty of forfeiting all rights, be filed no later than 1 year after timely notification of a complaint.

 

Retention of title

1. UFG BV shall retain the right of ownership of all products delivered until the purchase price has been paid in full. Retention of title shall also apply to the other claims stated in article 3:92, paragraph 2 of the Dutch Civil Code that UFG BV has or shall acquire against the Buyer.
   
   
2. Insofar as ownership of the products has not passed to the Buyer, the latter may not pledge the products or grant any third party any rights to these. The Buyer is, however, permitted to sell and transfer to third parties the products delivered under retention of title in the context of the normal running of its business, on the understanding that the Buyer is obliged to stipulate retention of title based on the provisions of this article if these are resold. The Buyer undertakes to refrain from assigning or pledging claims that it acquires against its customers without prior written permission from UFG BV. The Buyer is also obliged to pledge any claims against its customers to UFG BV on UFG BV’s first request as provided for in article3:239 of the Dutch Civil Code for additional security for the fulfilment of its obligations towards UFG BV on whatever basis.
   
   
3. If the Buyer fails in its fulfilment of one or more of its obligations or UFG BV has good reason to fear that it shall do so, UFG BV shall be entitled to take back the products delivered under retention of title. The Buyer shall provide any assistance in this. The Buyer shall renounce in advance any rights of retention regarding the products and shall refrain from having the products seized. After taking back the products, the Buyer will be credited for the market value, which shall in no case exceed the original purchase price, minus the costs in connection with taking back the products and any other loss that UFG BV incurs.
   
   
4. If the country of destination of the products purchased allows more far-reaching possibilities with regard to the retention of title over and above those stipulated above, the Parties accept that these further possibilities shall be deemed to have been stipulated for the benefit of UFG BV on the understanding that if it cannot be objectively established what these further rules are, those stated above shall continue to apply.
   
   
5. If the Buyer is located in Germany and/or the products are destined for Germany, the following extended and extensive retention of title under German law shall apply whereby UFG BV shall be referred to as “wir” and the
   
   Buyer as “Kaufer”:
   Das Eigentum an den gelieferten Waren bleibt zur Sicherung aller Ansprüche vorbehalten, die uns aus der gegenwärtigen und künftigen Geschäftsverbindung bis zum Ausgleich aller Salden gegen den Käufer zustehen.
   
   Unser Eigentum erstreckt sich auf die durch Verarbeitung der Vorbehaltsware entstehende neue Sache. Der Käufer stellt die neue Sache unter Ausschluss eigenen Eigentumserwerbs für uns her und verwahrt sie für uns.
   Hieraus erwachsen ihm keine Ansprüche gegen uns. Bei einer Verarbeitung unserer Vorbehaltsware mit Waren anderer Lieferanten, deren Eigentumsrechte sich ebenfalls an der neuen Sache fortsetzen, erwerben wir zusammen mit diesen anderen Lieferanten – unter Ausschluss eines Miteigentumserwerbs des Käufers – Miteigentum an der neuen Sache zu deren vollem Wert (einschließlich Wertschöpfung) wie folgt: a) Unser Miteigentumsanteil entspricht dem Verhältnis des Rechnungswertes unserer Vorbehaltsware zu dem Gesamtrechnungswert aller mitverarbeiteten Vorbehaltswaren. b) Verbleibt ein von Eigentumsvorbehalten zunächst nicht erfasster Restanteil, weil andere Lieferanten den Eigentumsvorbehalt nicht auf die Wertschöpfung durch den Käufer erstreckt haben, so erhöht sich unser Miteigentumsanteil um diesen Restanteil. Haben jedoch andere Lieferanten ihren Eigentumsvorbehalt ebenfalls auf diesen Restanteil ausgedehnt, so steht uns an ihm nur ein Anteil zu, der sich aus dem Verhältnis des Rechnungswertes unserer Vorbehaltsware zu den Rechnungswerten der mitverarbeiteten Waren dieser anderen Lieferanten bestimmt.
   Der Käufer tritt bereits jetzt seine Forderungen aus der Veräußerung von Vorbehaltsware aus unseren gegenwärtigen und künftigen Warenlieferungen mit sämtlichen Nebenrechten im Umfang unseres Eigentumsanteils zur Sicherung an uns ab. Bei Verarbeitung im Rahmen eines Werkvertrages wird die Werklohnforderung in Höhe des anteiligen Betrages unserer Rechnung für die mitverarbeitete Vorbehaltswerte schon jetzt an uns abgetreten.
   Solange der Käufer seinen Verpflichtungen aus der Geschäftsverbindung mit uns ordnungsgemäß nachkommt, darf er über die in unserem Eigentum stehende Ware im ordentlichen Geschäftsgang verfügen und die an uns abgetretenen Forderungen selbst einziehen. Bei Zahlungsverzug oder begründeten Zweifeln an der Zahlungsfähigkeit oder Kreditwürdigkeit des Käufers sind wir berechtigt, die abgetretenen Forderungen einzuziehen und die Vorbehaltsware zurückzunehmen, jedoch liegt ein Rücktritt vom Vertrag nur dann vor, wenn wir dies ausdrücklich schriftlich erklären.
   Übersteigt der Wert der uns eingeräumten Sicherheiten unsere Forderungen um mehr als 10%, so werden wir auf Verlangen des Käufers insoweit Sicherheiten nach unserer Wahl freigeben.
   Scheck-/Wechsel-Zahlungen gelten erst nach Einlösung der Wechsel durch den Käufer als Erfüllung.

Packaging

1. In the event UFG BV’s products are supplied with reusable trays and pallets (hereafter referred to as reusable returnable material; ‘’RRM’’) and packaging costs are invoiced, the packaging costs will be reimbursed to the Buyer against the market rate on the day of return, provided that the RRM is complete, empty, clean and without any damage, all at the sole discretion of UFG BV.
   
   
2. RRM which is not supplied by UFG BV will not be accepted, unless explicitly agreed by the Parties in writing.

Suspension, Dissolution

1. Without prejudice to its other rights under the law and/or the Agreement and/or these terms and conditions, UFG BV shall be entitled to suspend its obligations or, without this requiring any notice of default or judicial intervention, to dissolve all or part of the Agreement by means of written notification to the Buyer if: a) the Buyer fails to comply on time or properly with any commitment under the Agreement and/or b) UFG BV has good reason to believe that the Buyer will fall short in fulfilling one or more of its obligations and/or c) the Buyer has been declared bankrupt, is the subject of bankruptcy proceedings, has been granted suspension of payments, whether provisional or not, or has applied for suspension of payments, or is subject to a statutory debt restructuring programme or if this has been requested, the Buyer’s business is being liquidated or the Buyer’s goods are subject to enforcement or pre-judgment attachment which has not been lifted within one month of the date of attachment.
   
   
2. If, pursuant to both the law and the Agreement and these terms and conditions, the Buyer’s default only starts after it has been given notice of default, UFG BV, in the case provided for in paragraph a. under (a) of this article, shall not terminate all or part of the Agreement until it has sent the Buyer a written warning stating a reasonable period for compliance and the Buyer has failed to comply during this period.
   
   
3. In case it terminates all or part of the Agreement, UFG BV shall not be liable for compensation and all its claims against the Buyer shall be payable immediately and in full.

Liability and Indemnity

1. Without prejudice to aforementioned provisions in these terms and conditions, the following rules shall apply regarding UFG BV liability for damage sustained by the Buyer and/or third parties and regarding the indemnity of UFG BV by the Buyer.
   
   
2. UFG BV overall liability for whatever reason shall be limited to the amount which is paid out in the particular case under the liability insurance that it has concluded, increased by the amount of the deductible for which the insurers shall not be liable under the policy conditions. If no payment is made under this insurance policy for any reason whatsoever, UFG BV overall liability for whatever reason shall be limited to the net invoiced amount of the products in question, namely the price excluding value added tax and other taxes and charges and excluding transport costs.
   
   
3. UFG BV shall only be obliged to compensate damage to persons and property as described in the conditions of its liability insurance policy. UFG BV shall therefore not be liable for – and the Buyer shall be required to insure itself against – among other things consequential damage, trading losses, business interruption losses, loss of profits, lost savings, loss due to claims from the Buyer’s customers, loss of customers, reduced goodwill and damaged reputation.
   
   
4. Without prejudice to the aforementioned provisions in this article, UFG BV liability for products that it purchased from third parties shall not exceed the liability of these third parties towards UFG BV.
   
   
5. UFG BV shall not be liable for any shortcomings of third parties that it engages for carrying out this Agreement.
   
   
6. Insofar as fulfilment by UFG BV is not permanently impossible, UFG BV shall only be liable for an attributable shortcoming in fulfilling a obligation if the Buyer has declared UFG BV to be in default without delay and in writing stating precisely the nature of the shortcoming and has set a reasonable deadline to remedy the shortcoming and UFG BV also remains in attributable default in fulfilling its obligation after expiry of this deadline.
   
   
7. A condition for the right to compensation shall at all times be that the Buyer informs UFG BV of the damage in writing without delay, but no later than 14 days after the Buyer has become aware or should reasonably have become aware of the damage.
   
   
8. Any legal action shall be instituted no later than one year after the timely reporting of the damage, subject to forfeiture of all rights.
   
   
9. The Buyer shall indemnify UFG BV against any type of liability that may rest on UFG BV vis-à- vis third parties with respect to products that UFG BV has delivered or shall deliver. The Buyer shall reimburse UFG BV for the reasonable costs of defending against third-party claims.
   
   
10. UFG BV shall refrain from invoking any limitation on its liability and the Buyer is not obliged to indemnify UFG BV insofar as the damage results directly from wilful intent or deliberate recklessness on the part of UFG BV or its executives.
    
    
11. This provision does not apply insofar as provisions of mandatory law prevent this.

Force Majeure

1. The following shall be considered as “force majeure” (a non-attributable shortcoming) for the purpose of these terms and conditions, including but not exhaustive: any circumstance not subjectively attributable to a fault of UFG BV making it impossible or practically too problematic for UFG BV to fulfil or to continue fulfilling its obligation or part thereof including but not expressly limited to complete or partial failed harvests, plant diseases, vermin infestation, force majeure and/or breach of contract (“attributable non-performance”) and/or unlawful actions on the part of UFG BV sub-suppliers or carriers or by other third parties involved in implementing the Agreement, abnormal weather conditions, frost, storm damage and other damage caused by natural disasters, strikes, transport difficulties, epidemics / pandemics, fire, theft, war and danger of war, terrorism, Government measures such as import and export bans, levies, import duties and quota systems.
   
   
2. In the event of force majeure, UFG BV shall be entitled to suspend fulfilment of its obligation or part thereof without the Buyer being entitled to demand fulfilment or compensation.
   
   
3. If the force majeure exceeds two months, each Party shall be entitled to dissolve all or part of the Agreement without being liable for compensation on the understanding that UFG BV shall still be entitled to a proportionate share of the price if it fulfils part of its obligation before or after the occurrence of force majeure.
   
   
4. UFG BV shall also be entitled to invoke force majeure if this occurs after it should have fulfilled its obligation.

Intellectual and Industrial Property

1. All rights of intellectual and industrial property with regard to the products and the related packaging and packaging materials, all in the broadest sense of the word, will be held solely by UFG BV and its licensors.
   
   
2. The Buyer will for each infringement of a right as referred to in paragraph (a) of this article forfeit an immediately payable penalty of a minimum EUR 7500, increased by an immediately payable penalty of EUR 1500 (minimum) for each day, including a part of a day, that the infringement continues. This penalty clause is without prejudice to the other rights of UFG BV, including but not limited to its right to damages by law.

Applicable law, disputes

1. Without prejudice to the contents of article 8, paragraphs (d) and (e) of these terms and conditions, the legal relationship between the Parties shall be governed by Dutch law with the inclusion of the Vienna Convention on Contracts for the International Sale of Goods.
   
   
2. Except where this is opposed by mandatory law, all disputes that may arise between the Parties in relation to or in connection with an Agreement and/or these terms and conditions shall in the first instance be settled exclusively by the Rotterdam Court (proceedings on the merits) or the Preliminary Relief Judge of the Rotterdam Court (summary proceedings andother preliminary relief), without prejudice to the Supplier’s right to submit such a dispute to any other competent court.
   
   
3. Without prejudice to paragraph 2 of this article, UFG BV shall be entitled at all times to have such a dispute settled in accordance with the Arbitration Rules of the Netherlands Arbitration Institute (Nederlands Arbitrage Instituut). The arbitral tribunal shall be composed of three arbitrators. The place of arbitration shall be Rotterdam. The arbitral procedure shall be conducted in English. The arbitral tribunal shall make its award in accordance with the rules of law.