1. These general terms and conditions prevail over any of the customer’s conflicting or other terms and conditions, even if these are communicated at a later date.
2. Any delivery period stated, even if this is mentioned specifically, is approximate and is provided for information. Therefore, exceeding such period shall not give rise to the annulment or termination of the contract. Moreover, exceeding the delivery period shall not give rise to any compensation for damages or other claim vis-à-vis Fruit Layer BV.
3. Prices stated or contracted, whether they are unit prices, general or total prices, must always be considered in relation to the circumstances and parameters influencing prices prevailing at the moment at which said prices were negotiated. The customer authorises Fruit Layer BV to unilaterally adjust prices if market conditions and/or parameters influencing prices change.
4. Fruit Layer BV is always authorised to invoke force majeure whenever there is reason to do so. Force majeure must be understood in the broadest sense of the word, i.e. any circumstance outside the individual will of Fruit Layer BV shall be taken into account.
In this regard, Fruit Layer BV has a simple notification obligation before actually invoking force majeure.
5. Any change to a purchase order must be made in writing. This shall only be valid on condition that Fruit Layer BV accepts it in writing. If such change entails a partial cancellation, the provisions in Article 10 below shall apply.
6. All delivered goods remain the property of Fruit Layer BV until the moment at which full payment of the principal sum, costs and interest has been made, even if such goods have been changed or incorporated.
In the event of non-payment, Fruit Layer BV can re-possess and collect the goods at any moment, at the customer’s risk and expense. Fruit Layer BV thereby reserves the right to keep the charge and indebtedness for such re-possessed goods – having regard to their possible unique nature.
Risk transfers to the customer from the moment of delivery, even if transport is by or at the instruction of Fruit Layer BV.
The customer must take out insurance to cover possible cases of damage.
Delivery is always ex works.
Goods are sent at the customer’s cost and risk for matters such as storage, loading, transport and other expenses, regardless of the transport provisions.
The customer shall take out the necessary insurance policies in this respect.
If a third party claims anything from Fruit Layer BV in this regard for any reason whatsoever, the customer shall always fully indemnify Fruit Layer BV.
7.1. The customer must receive the goods and check them immediately. Complaints, containing a detailed and exhaustive list of the defects, must be submitted by registered post within 24 hours of delivery.
Fruit Layer BV shall not be liable for visible defects notified after the abovementioned period.
Moreover, visible defects shall not entitle to compensation if the goods have been treated or processed in the meantime.
7.2. Hidden defects shall only entitle to compensation if, having regard to the particular nature of the goods, they are reported to Fruit Layer BV by registered letter containing a detailed and exhaustive list of the defects within 14 days. Hidden defects shall not entitle to compensation if the goods were treated or processed in the meantime or if their best before date has expired in the meantime.
Subject to lapsing of this right, any claim at law on the grounds of hidden defects must be lodged within 2 months of delivery.
7.3. With regard to visible and hidden defects and delivery that is not in conformity, whereby Fruit Layer BV is held liable, its liability shall at all times be limited to the replacement of such delivered item or – if replacement is impossible – at most to the amount of the purchase sum stipulated for that component and the actual cover granted by its insurer. In dealing in this manner, Fruit Layer BV shall be released from any claim for damages.
The customer shall be liable for the costs involving – this list is not exhaustive – transport, storage or demolition of the bad batch of goods.
The customer shall always be liable for any recall costs in the broadest sense of the word.
7.4. The putting to use/processing of (a part of) the delivered goods shall be irrevocably regarded as definitive acceptance of all the goods.
7.5. Disputes regarding invoicing must be lodged by registered mail within eight days.
8.1. Customers of Fruit Layer BV shall not make any claim for any minor or major mistake made by the latter, its agents or its temporary personnel.
Customers shall take out adequate insurance cover for this purpose. Moreover, Fruit Layer BV shall not be liable for intent on the part of its agents.
Liability on the part of Fruit Layer BV shall at all times be limited to the total amount of the invoices issued and the actual cover granted by its Third-Party Liability insurer.
Indirect damage shall not qualify for compensation.
The customer shall always be liable for any recall costs in the broadest sense of the word.
8.2. Fruit Layer BV shall not be held liable for any damage to third parties, regardless of the cause.
Pursuant to the assignment concluded, the customer accepts full liability in the case of indemnification.
In this regard, the customer shall take out all the necessary insurance cover, both in favour of Fruit Layer BV and in favour of any subcontractors/suppliers of Fruit Layer BV.
8.3. Fruit Layer BV shall not, either directly or indirectly, be held liable for the acts of its subcontractors.
8.4. Where appropriate, the Directors of Fruit Layer BV shall never be held more extensively accountable than as set out in the applicable management liability insurance cover.
8.5. Fruit Layer BV shall never be held liable by the customer for any advice it may provide.
9. The customer waives recourse regarding any harm done to its own personnel. The customer shall also have said waiver of recourse applied by its own industrial accidents insurer.
10. Any incident attributable to the customer which temporarily renders delivery impossible shall generate a right to proportional extension of the delivery period as well as a right to compensation for the damage caused by the delay, estimated at a fixed sum of 10%, without prejudice to the right of Fruit Layer BV to claim higher compensation for damages if proven.
If the customer refuses the order, annuls the contract or if the contract cannot be executed, then the customer shall pay compensation for damages in the amount of 20% of the total amount of the order.
If non-execution of the contract is attributable to Fruit Layer BV, excluding pursuant to a force majeure situation, then it shall owe similar compensation.
If the customer refuses the order, annuls the contract or if the contract cannot be executed, then the customer shall be obliged to compensate Fruit Layer BV for any costs already incurred.
11. All invoices are payable in cash in Boven Vrijlegem 41, Asse on the invoice date.
Agents of Fruit Layer BV are not authorised to receive payments.
If full payment is not made on that date, interest at 12% per year shall be charged automatically and without notice of default until the date on which payment is made in full.
In addition, compensation for damages in the amount of 10% of the invoice amount negotiated between the parties, with a minimum of EUR 100, shall also be owed.
Such interest and compensation for damages shall also be owed if a bill of exchange is accepted. Expenses associated with unpaid bills of exchange or cheques are not included in such fixed compensation and are charged separately.
If payment is not made (in full) on the due date of one invoice, all invoices shall become immediately due and payable and Fruit Layer BV shall have the unconditional right to suspend (the first or continued) delivery until full payment of the amount owed has been made.
Where appropriate, any arrangements made regarding delivery periods shall lapse. The suspension of (the first or continued) delivery shall not give rise to any right to compensation for damages on the part of the customer.
If delivery consists of partial orders, Fruit Layer BV reserves the right to suspend execution of the next partial order in accordance with that set out above until the previous partial order has been paid in full.
The above does not prejudice the right of Fruit Layer BV to recover from the customer the damage suffered in the form of lost profit, or any other expenses, caused by a lack of or delay in payment (administrative costs, etc.).
All of the above does not prejudice the right of Fruit Layer BV to unilaterally terminate the agreement concluded between parties to the detriment of the customer due to breach of contract.
12. The customer must have a first-rate Belgian bank issue an abstract bank guarantee in favour of Fruit Layer BV for the amount of the agreement.
13. The customer undertakes not to personally use or pass on to third parties any production, processing or application methods applied by Fruit Layer BV which may come to its knowledge.
In this regard, an absolute confidentiality obligation applies and is penalised by conventional compensation for damages in the amount of EUR 100,000 per violation, without prejudice to owing a higher amount for compensation for damages proven.
14. If one of the clauses of these general terms and conditions is null and void, this shall not call into question the validity of the other clauses. Where possible, parties shall be obliged to replace the invalid provisions by an equivalent provision which is in keeping with these general terms and conditions and which is not null and void.
15. The Justice of the Peace in Asse and the Dutch Court of First Instance or Commercial Court in Brussels, shall be solely competent to take cognisance of any disputes in First Instance.
Belgian law applies.