Whereas it is desirable to declare general terms and conditions applicable to all purchase agreements, contracts of sale, commission agreements and related agreements concluded within the framework of its business, Aqui Fruit & Greens International B.V. and/or its successors in title and/or allied enterprises: hereinafter referred to as vendor, has laid down the following General Terms and Conditions:



Article 1: Applicability

1. The following terms and conditions shall apply exclusively to all agreements concluded by vendor with third parties, hereinafter referred to as “the buyer”, unless explicitly agreed upon otherwise.

2. The agreements referred to in paragraph 1 shall include purchase agreements, contracts of sale, commission agreements and related agreements.

3. Any stipulations that deviate from these terms and conditions shall only be binding if they have been agreed in writing.


Article 2: Prices

1. All our contracts of sale shall be deemed to have been concluded in the town where vendor has its registered office, as regards both implementation and payment. All our prices shall be quoted in euro (unless otherwise stated) and are exclusive of transport costs (unless otherwise stated).

2. We shall not be obliged to satisfy an agreement at a price which is obviously based on a typing or writing error.


Article 3: Place and terms of delivery

1. Delivery shall be made ex warehouse.

2. If it is agreed that transport is taken care of by or on behalf of vendor, receipt shall be deemed to take place at the moment of delivery at the agreed place.

3. If the goods are stored for the buyer by or on behalf of vendor, at vendor's premises or at premises of third parties, delivery shall be deemed to be made at the moment when the goods are stored.

4. Any delays in delivery, in so far as these remain within reasonable limits, shall not entitle the buyer to dissolve the agreement.


Article 4: Risk

From the moment the goods have been delivered, they shall be at buyer's risk, and if the buyer fails to cooperate in the delivery, they shall be at buyer's risk from the moment when the buyer refuses to cooperate.


Article 5: Quantity delivered

The quantity delivered - as regards number, weight and requirements under public and private law - shall be deemed to be in accordance with what has been agreed or prescribed, barring proof to the contrary to be furnished by the buyer.


Article 6: Retention of title

1. Goods delivered by vendor shall remain the property of vendor until all claims of vendor against the buyer on account of agreements concluded between the parties have been paid in full, including interest and costs.

2. Goods delivered by vendor, for which the retention of title is claimed pursuant to paragraph 1 may only be sold on within the framework of the buyer's normal conduct of business.

3. If the other party fails to fulfil its obligations or there are good reasons to suspect that it will not fulfil its obligations, vendor shall be entitled to remove any goods delivered for which the retention of title is claimed pursuant to paragraph 1 from the buyer's premises or from the premises of third parties keeping the goods on the buyer's behalf, or to have them removed. The buyer shall be obliged to render all co-operation to this end.

4. If third parties wish to encumber the goods delivered subject to retention of title with any right or if they wish to exercise such right, the buyer shall be obliged to inform vendor thereof as soon as may reasonably be expected.

5. The buyer undertakes to cooperate, within reasonable limits, in all measures which vendor wishes to take to protect his proprietary rights to the goods delivered.


Article 7: Force majeure

1. In the event of force majeure the obligation to deliver and other obligations of vendor shall be suspended. The obligations shall revive when fulfilment of the obligations is reasonably possible again. Force majeure shall be understood to mean unforeseen circumstances with respect to persons and/or materials employed or usually employed by vendor when carrying out the agreement, which are of such a nature that as a result thereof fulfilment of the agreement becomes impossible or problematic and/or disproportionately expensive, to such a degree that it cannot reasonably be required any longer that the agreement be carried out.

2. If vendor has already partially fulfilled its obligations when the situation of force majeure arises, or can only partially fulfil its obligations, vendor shall be entitled to send a separate invoice for the goods already delivered and/or the part which can be delivered, and the buyer shall be obliged to pay this invoice as if it concerned a separate contract.


Article 8: Obligations of the buyer

1. When a delivery is made by the vendor, (as referred to in article 3, paragraph 2) the buyer must inspect the goods delivered in the presence of the driver. On that occasion the buyer is to ascertain whether the goods supplied are in accordance with the stipulations of the agreement, i.e.:

a. whether the correct goods have been delivered;

b. whether the goods delivered meet the quality requirements which may be set for normal use and/or for trade purposes;

c. whether the quantity of the goods delivered (number, quantity, weight) is in conformity with the agreed quantity. If the difference between the short delivery and the agreed quantity is less than 10% of the total quantity, the buyer shall be obliged to fully accept the goods delivered, in which case the price shall be reduced proportionately.

2. If the goods are delivered in the sales room (as referred to in article 3) the buyer shall immediately inspect the goods in conformity with paragraph 1.

3. If the goods are delivered to a third party who keeps them for the buyer, the buyer shall be obliged to carry out the inspection referred to in paragraph 1 (or to have such inspection carried out) on the day of delivery.

4. If the buyer intends to lodge a complaint he shall notify vendor thereof as soon as possible after the failure is detected or after he could reasonably have detected the failure, but in any case not later than 8 hours after delivery. If this notification was an oral one it must be confirmed to vendor in writing (by fax, letter, bailiff's notification).

5. The shipment in question must remain present in its entirety and the buyer must give the vendor the opportunity to inspect the goods.

6. The buyer shall be obliged to take care of the goods as a prudent debtor at all times.

Article 9: Liability of the vendor

Except in case of force majeure vendor shall only be liable for loss and/or damage if non-fulfilment or late fulfilment is due to intent or gross negligence on its own part or on the part of its employees, up to an amount not exceeding the invoice amount of the goods. Vendor shall never be liable for any other loss or damage, regardless of how it is called.


Article 10: Packaging

1. The packaging supplied by vendor, including pallets, crates and boxes, for which a deposit has been paid, shall be taken back at the invoice price applying at the time when the packaging is returned, possibly increased by a fixed packaging fee in accordance with the relevant regulations. The container to be returned must be so clean and fresh that it is suitable for fresh edible horticultural products.

2. When packaging is returned using vendor's own means of transport, the packaging must be sorted and ready for transport.

3. Packaging not delivered through vendor shall only be accepted in so far as vendor's assortment includes the products concerned.

Article 11: Payment

1. The goods delivered must be paid within two weeks of the date of the invoice relating to the delivery in question, unless this rule is deviated from by means of an agreement in writing.

2. Each payment for outstanding invoices shall be deemed to have been made in settlement of the oldest unpaid items.

3. A set-off against any claim which the buyer has or believes to have, shall not be permitted, unless vendor has sent the buyer a credit note or has been ordered by the court to pay the buyer a sum of money.

4. If the period mentioned in paragraph 1 is exceeded the buyer shall owe a default interest of 1% per month, without prejudice to vendor's right to claim legal compensation.

Article 12: DISSOLUTION AND LIABILITY OF THE BUYER

1. If the buyer fails to fulfil his obligations set out above (or fails to fulfil them on time), vendor shall have the right to suspend further delivery. In that case the buyer shall be in default. Vendor shall then be entitled to dissolve the agreement without any court intervention by means of a written declaration, and the buyer shall be liable for any loss or damage sustained by vendor, including loss of profits, other financial losses, product damage, costs and interest, transport costs, commission, legal and non-legal expenses, as well as all other costs directly or indirectly relating to the purchase.

2. All non-legal expenses incurred by vendor in case of nonfulfilment, late or inadequate fulfilment by the buyer shall be entirely for account of the buyer. The non-legal expenses incurred by vendor shall amount to 15% of the total sum the buyer owes vendor up to an amount not exceeding € 7.500 for collection costs in the Netherlands and € 15.000 for collection costs outside the Netherlands, all this with a minimum of € 250. In case of judicial collection, in addition to the costs related to that, the buyer shall also owe the extrajudicial collection costs and interest.


Article 13: INDUSTRIAL AND INTELLECTUAL PROPERTY RIGHTS

Vendor reserves any industrial and intellectual property rights (trademarks) in connection with products supplied by vendor.


Article 14: Applicable law

1. All agreements, including purchase agreements, contracts of sale and other agreements, concluded with vendor, shall exclusively be governed by the laws of the Kingdom of the Netherlands.

2. The Dutch text shall prevail. In the event of transactions with foreign parties, the applicability of the Uniform Sales Acts and the Vienna Sales Convention is expressly excluded.


Article 15: Disputes

1. Any disputes arising from purchase agreements, contracts of sale and commission agreements concluded with vendor, including claims relating to overdue payments, shall be settled by the competent court in the town where vendor has its registered office, to the exclusion of any other body.

2. Contrary to the provisions of paragraph 1, the parties may agree in writing that any disputes can be settled by another body.


Venlo, 14 February 2006

D.M.M. Stijntjes
MCL van Eeuwijk