General Terms and Conditions

General Terms and Conditions

General Terms and Conditions of Sales and Service Van Kessel Fruit B.V.

1. Definitions
General Terms and Conditions: these General Terms and Conditions, as applied by Van Kessel Fruit B.V., and applicable to the activities to be performed by it on behalf of the Client/Customer in the field of entry into storage and/or storage and/or removal from storage of fruit, or in respect of the sale and delivery and/or transport of fruit by it.
These General Terms and Conditions have been filed with the Chamber of Commerce;
Van Kessel Fruit: the private company with limited liability Van Kessel Fruit B.V., registered with the Brabant Chamber of Commerce under number 11024778, having its corporate seat and its principal place of business in (5334 JG) Velddriel at Provincialeweg 143-145;
Client/Customer: the natural person or legal entity who has instructed Van Kessel Fruit to perform activities in the field of entry into storage and/or storage and/or removal from storage of fruit, or purchases fruit from it;
Agreement: any agreement between the Client or Customer and Van Kessel Fruit to perform activities in the field of entry into storage and/or storage and/or removal from storage of fruit by Van Kessel Fruit on behalf of the Client, or relating to the sale and delivery and/or transport of fruit by Van Kessel Fruit to or on behalf of the Customer.       
2. Applicability
The General Terms and Conditions apply to all offers, including offers by telephone, and all Agreements concerning Van Kessel Fruit.
Van Kessel Fruit expressly rejects the applicability of any general terms and conditions of the Client/Customer to the legal relationship between the parties.
Deviations from and additions to these General Terms and Conditions are only valid if they have been agreed in writing between the parties.
In the event of any conflict or inconsistency between provisions from an Agreement and the General Terms and Conditions, the provisions of the Agreement in question prevail.
To the extent that Van Kessel Fruit acts as a forwarding agent and these General Terms and Conditions do not make provision for a certain aspect, the most recent version of the Dutch Forwarding Conditions (the so-called FENEX Conditions) will apply in such case and for such a situation.In the event of any conflict or inconsistency between provisions from the General Terms and Conditions and the FENEX Conditions, the provisions of the General Terms and Conditions prevail, unless this would be contrary to provisions of mandatory law.
 
3. Formation of Agreement
All offers by or on behalf of Van Kessel Fruit are without obligation, unless otherwise indicated in writing.
Agreements are concluded only when Van Kessel Fruit confirms the offer in writing or when Van Kessel Fruit has effectively taken on the order.
If the Client/Customer makes any reservations or amendments to the offer at the time of acceptance, the Agreement will only come into effect at the time that the amendments and/or reservations have been confirmed in writing by Van Kessel Fruit. If there is no written confirmation from Van Kessel Fruit and Van Kessel Fruit has effectively taken on the order, then this will be done on the basis of Van Kessel Fruit’s original offer. 
4. Performance of Agreement
Van Kessel Fruit will perform any Agreement to the best of its ability, in accordance with what has been agreed upon with the Client/Customer.
With regard to entry into storage, storage and removal from storage, Van Kessel Fruit undertakes to take receipt of the fruit, store the fruit, and remove the fruit from storage at the agreed-upon place and time and in the agreed-upon manner.
In the event of purchase, the Customer will bear the risk of the purchased good(s) as from the conclusion of the purchase agreement. This applies both to the transport of the purchased good(s) and to the storage of the purchased good(s).
Van Kessel Fruit is entitled to charge a fee for sustainable packaging materials.
Van Kessel Fruit is entitled to have all or part of the performance of an Agreement carried out by third parties.
If, during the performance of an Agreement, at the request of the Client/Customer a deviation is made from what was originally agreed upon, any additional costs involved will be passed on to the Client/Customer.
Activities that were not agreed upon at the time an Agreement was entered into, but which were subsequently commissioned or are considered necessary by Van Kessel Fruit, will be carried out by Van Kessel Fruit at the applicable prices. 
Activities will only be performed on working days – not being Christian or national holidays – from Mondays to Fridays between 8:00 am and 5:00 pm. If special circumstances that suddenly occur render such necessary, this principle may be deviated from in consultation. 
5. Obligations of the Client/Customer
The Client/Customer will give Van Kessel Fruit the opportunity to perform the activities.
The Client/Customer is obliged to provide in good time all information that it knows or should know to be important to Van Kessel Fruit. In addition, the Client/Customer will make available to van Kessel Fruit in good time, in the desired form and in the desired manner the information that Van Kessel Fruit indicates it needs for the proper performance of the Agreement.
The Client/Customer guarantees the accuracy, completeness and reliability of the information made available to Van Kessel Fruit.
The Client/Customer is obliged to inspect the delivered good(s) immediately upon delivery for any defects and/or visible damage, or to carry out this inspection after Van Kessel Fruit has informed the Client/Customer that the goods are at its disposal.
Any defects and/or damage to the delivered good(s) and/or the packaging present at the time of delivery must be stated on the delivery order and/or the transport documents by or on behalf of the Client/Customer, failing which the Client/Customer will be deemed to have approved the good(s) delivered.
Insofar as the performance of the activities is delayed or the activities cannot be properly performed due to failure to meet the obligations set out in this clause either in time or properly, the resulting additional costs will be for the account and risk of the Client/Customer. 
6. Prices
All Van Kessel Fruit prices are stated in euros and exclusive of turnover tax, any other taxes and/or levies, as well as exclusive of the costs of packaging, loading and unloading, transport and insurance, unless explicitly stated otherwise. Insofar as the prices relate to the entry into storage and/or storage and/or removal from storage of fruit, they are also based on delivery ex the Van Kessel Fruit storage facility.
Van Kessel Fruit has the right to change the prices in the interim if, during the term of the Agreement (this also applies to call-off orders in the event of sale), there is a change in cost price factors (e.g. a change in the collective agreement, government decisions, costs of consumables) and in the relevant collective agreement. The Client/Customer will be notified of such an intention at least one month before the effective date. If the Client/Customer has not objected to the price change by the effective date of the price change at the latest, the Client/Customer will be deemed to have agreed to the said change. The Client/Customer is entitled to terminate the Agreement early in writing within two weeks of Van Kessel Fruit’s notification of the price change, with the termination taking effect on the date on which the price change is implemented. The option to terminate does not apply if the parties have expressly agreed on an interim price change clause in the Agreement. 
7. Invoicing and Payment
Van Kessel Fruit will send the Client/Customer an invoice for the services rendered or products sold by Van Kessel Fruit.
The Client/Customer will ensure payment of an invoice within 21 days after the invoice date by transferring the invoice amount to a Van Kessel Fruit bank account (stated on the invoice), unless expressly agreed otherwise.
The Client/Customer is not entitled to any deduction or discount on the invoice amount.
In the event of late or incomplete payment, the Client/Customer will be in default by operation of law immediately upon expiry of the agreed payment term, without any further demand notice or notice of default being required.
In the event of late or incomplete payment, the Client/Customer will owe interest of 1% per calendar month on the outstanding invoice amount after expiry of the payment term until the date of payment in full, such without prejudice to Van Kessel Fruit’s other rights.
Van Kessel Fruit is entitled to charge all necessary judicial and extrajudicial collection costs to the Client/Customer. The extrajudicial collection costs are set at the actual costs incurred or at least 15% of the amount to be claimed, with a minimum of EUR 500. The collection costs will be due and payable at the moment that Van Kessel Fruit passes on the claim for collection.
Payments made by the Client/Customer first serve to pay costs, then interest and then the oldest debts, even if the Client/Customer has given another designation to its payment.
The invoice referred to in paragraph 1 of this clause is immediately due and payable, if:

The Client/Customer is bankrupt or the Client/Customer has been granted a suspension of payments;
The Client/Customer offers its creditors a composition;
The Client/Customer is in material breach of its obligations;
The Client/Customer terminates the Agreement;
The Client/Customer ceases to operate its business or upon dissolution in case of a legal entity or company.

At Van Kessel Fruit’s first written request, the Client/Customer will make an advance payment, to be determined in all reasonableness by Van Kessel Fruit, failing which Van Kessel Fruit will be entitled to suspend the performance or further performance of the activities/delivery until such time as the Client/Customer has made the advance payment to Van Kessel Fruit or has provided security for it in some other manner. 
8. Complaints
Van Kessel Fruit will only address complaints if the Client/Customer has informed Van Kessel Fruit in writing as soon as possible after the discovery of a defect or after it could have reasonably discovered the defect, but no later than 24 hours after delivery.
The Client/Customer will give Van Kessel Fruit the opportunity to inspect the defective goods. This inspection will take place as soon as possible, in the Netherlands in any case within 24 hours after receipt of the complaint.
After expiry of the period referred to in paragraph 1, the Client/Customer will be deemed to have approved the services rendered or goods delivered and the corresponding invoice. Complaints will no longer be taken into consideration then.
Van Kessel Fruit has the choice, if it deems the complaint justified, to perform the activities anew or to credit that part of the invoice amount to which the complaint relates. 
9. Suspension and Right of Retention
Van Kessel Fruit is entitled to suspend its obligations under the Agreement with the Client/Customer if the Client/Customer fails to comply properly, promptly or at all with its obligations under the Agreement entered into by the parties;
Any costs arising from the suspension will be for the account of the Client/Customer.
Van Kessel Fruit has a right of retention on the goods in its possession by virtue of an Agreement, for all claims that Van Kessel Fruit has against the Client/Customer, from the moment and for as long as the Client/Customer is and continues to be in default of its obligations under the Agreement. Van Kessel Fruit is entitled to refuse the delivery of the goods in respect of which it has the right of retention against anyone.
Any costs associated with exercising the right of retention, including storage costs, will be for the account of the defaulting Client/Customer. 
10. Expiry Period
Without prejudice to the obligation of the Client/Customer to complain in a timely manner about failures in the performance of the Agreement by Van Kessel Fruit, claims of the Client/Customer with regard to the Agreement will expire one year after they have arisen pursuant to the applicable laws or regulations.
 
11. Insurance Policies
The Client/Customer itself is responsible for taking out the necessary insurance policies, such as goods in transit insurance, storage insurance, fire insurance and/or water damage insurance.
 
12. Liability of Van Kessel Fruit
With the exception of the liability laid down in this clause, Van Kessel Fruit is not liable for any damage.
Van Kessel Fruit will never be liable for damage in respect of which the Client/Customer could and – pursuant to the provisions of Clause 11 – should have taken out an insurance policy itself.
Van Kessel Fruit will never be liable for:

Indirect loss, trading loss or consequential loss incurred by the Client/Customer;
Damage/loss incurred by the Client/Customer or third parties, resulting from incorrect or incomplete information provided by the Client/Customer;
Damage/loss resulting from an inherent defect of the good;
Failure to perform work in time if the Client/Customer has failed to comply with its obligations under Clause 5 or failed to do so in time.

Van Kessel Fruit is only liable for damage/loss if this damage/loss is the result of serious fault or gross negligence on the part of Van Kessel Fruit or its managerial staff.
The liability of Van Kessel Fruit is in any event always limited to the amount paid out under the relevant Agreement on the basis of the applicable (liability) insurance of Van Kessel Fruit.
The liability can never exceed the invoice amount of the relevant delivery or activities.
The Client/Customer is obliged to report any loss/damage (other than complaints as referred to and regulated in Clause 8) in writing within 14 days after its occurrence. 
13. Force Majeure
Neither party is obliged to fulfil any obligation, including any guarantee obligation agreed between the parties, nor obliged to pay any compensation when prevented from fulfilling obligations as a result of force majeure. Force majeure is understood to mean, among other things, the inability to comply with the Agreement properly, in time or at all as a result of:

The natural quality of the goods;
Quality changes over time;
Mould and internal decay;
Fermentation, rust, sprouting, freezing;
Drying, weight loss and decay;
Damage caused by rats, mice, insects, worms and other vermin;
Computer failures in cold storage installations, electricity failures, computer network or Internet failures, strikes, government measures, fire, floods, acts of war and the like.

If a situation of force majeure continues for more than thirty days, each party has the right to terminate the Agreement in writing. Any performance already delivered under the Agreement will in that case be settled proportionally, without the parties owing each other anything else. 
14. Confidentiality
Each party must ensure that all information received from the other party that is or reasonably should be known to be confidential will remain secret. The party receiving confidential information will only use it for the purpose for which it was provided. Information will in any event be regarded as confidential if it is defined as such by one of the parties.
Each party will ensure that its employees comply with this provision.
This provision does not apply to information and data that is already public, provided that its publication is not the consequence of its wrongful acquisition. 
15. Cancellation
In the event of cancellation of an Agreement by the Client/Customer, the Client/Customer will owe Van Kessel Fruit 10% of the agreed-upon price by way of cancellation fee, without prejudice to Van Kessel Fruit’s right to full compensation, including loss of profit.
 
16. Term, Termination
An Agreement is entered into for an indefinite period of time, unless the parties have agreed otherwise in writing.
In the event of an Agreement for one-off work or a one-off delivery, the Agreement will end by operation of law upon completion of this work or this delivery.
A fixed-term Agreement will end by operation of law after the expiry of the fixed term, unless expressly extended in writing.
A party is entitled, without prejudice to any rights to compensation and/or suspension of its obligations, to terminate the Agreement with immediate effect by means of a written notification, if:
The other party fails to comply with any of its obligations under the Agreement or any statutory regulations properly, in time or at all, which improper compliance, late compliance or non-compliance has not been remedied within fourteen days after a request to that effect has been issued by the terminating party;
The other party is granted a suspension of payments, is declared bankrupt, voluntarily or involuntarily proceeds to the liquidation of the company, ceases its business operations, or resolves to effect a legal merger, cease its operations or apply for a suspension of payments or petition for bankruptcy, or if the other party offers its creditors a composition or a debt restructuring plan;
Attachment is levied on the other party’s business assets, which attachment, if levied as a prejudgment attachment, has not been lifted within 30 working days of attachment, and/or the business assets of the other party are sequestered or sold by execution and/or similar circumstances affecting the ownership of the other party’s assets occur.In the event of a situation as referred to above under a, b, or c, all claims, including future claims, are immediately due and payable.
 
17. Transfer of Rights and Obligations
Provided that compliance with the Agreement by the legal successor is reasonably guaranteed, Van Kessel Fruit will be entitled to assign the Agreement and/or any claims arising therefrom to a third party and the Client/Customer hereby, for any time as may be necessary, grants its consents for such assignment, if necessary.
 
18. General
Van Kessel Fruit is authorised to make amendments to the General Terms and Conditions at any time. These amendments will become effective at their indicated effective date. Van Kessel Fruit will send the amended General Terms and Conditions to the Client/Customer in good time. Insofar as no effective date has been announced yet, the amendments will enter into effect thirty days after Van Kessel Fruit has notified the Client/Customer of the amendments.
If the Client/Customer does not want to accept an amendment to the General Terms and Conditions, then Van Kessel Fruit and the Client/Customer will enter into consultations in order to reach a solution. If Van Kessel Fruit maintains the amendments in relation to the Client/Customer, the Client/Customer will only be entitled to terminate the Agreement with effect from the day on which the amended General Terms and Conditions take effect, if the amended General Terms and Conditions entail a substantial deterioration in the (legal) position of the Client/Customer.
If any provision of these General Terms and Conditions is null or annulled, the remaining General Terms and Conditions will otherwise remain in force. The parties will consult on the provisions in question to arrive at an alternative arrangement, such on the proviso that the purport of the General Terms and Conditions be preserved as much as possible.
Van Kessel Fruit has the right to use the Client/Customer for promotional purposes or as a reference for other existing or potential clients/customers. This use concerns both the name or trade name and the logo of the Client/Customer. 
19. Choice of Law and Choice of Forum
The legal relationship between the Client/Customer and Van Kessel Fruit is governed by Dutch law.
Any disputes that may arise between Van Kessel Fruit and the Client/Customer as a result of an Agreement concluded between them will be settled exclusively by the Oost-Brabant District Court.