ARTICLE 1: APPLICABILITY
- All the agreements concluded by Cool Port Packing Rotterdam BV, hereafter referred to as "CPPR", with third parties, hereafter referred to as "client", are exclusively subject to the following terms and conditions, unless otherwise has explicitly been agreed.
- Agreements as referred to in subsection 1 include the selection, packaging, cleaning, polishing, commission and related agreements, hereafter jointly and individually referred to as the "assignment".
- Clauses that deviate from these terms and conditions are only binding if they have been agreed in writing.
ARTICLE 2: OFFER, PRICES
- All our (assignment) agreements are deemed to have been concluded, as regard the performance, in the place of residence of CPPR. All our prices are denominated in euro (unless otherwise is specified) and exclude (internal) transport costs.
- We are not complied to honour an agreement at a price that is clearly based on a printing error or typo.
- Unless otherwise is explicitly agreed by the parties, the indicated prices are excluding VAT.
- All the offers made by CPPR, however referred to or made, are free of obligation, unless otherwise is explicitly specified in writing. The agreement is initially concluded by the offer being made and the acceptance thereof. An acceptance is only referred to as such as soon as a competent officer of CPPR has confirmed this to the client in writing.
- Agreements concluded by the (trade) representatives of CPPR or other intermediaries acting on CPPR's behalf are not binding for CPPR unless a competent officer of CPPR has explicitly confirmed the agreement in writing to the client.
- The client will be bound to the content of the written confirmation of the agreement, unless he objects to the content of this written confirmation in writing before the performance thereof, thereby specifying the grounds of his objections.
- All the offers made by or on behalf of CPPR, representatives of CPPR and other intermediates acting in CPPR's behalf, have a validity period of three (3) months (one season). If the agreement is not concluded within this period pursuant to that stated in article 2, or if the written confirmation of the client substantively deviates from the offer made by CPPR, then the agreement is initially agreed if and as soon as a competent officer of CPPR has explicitly accepted and confirmed the agreement in writing pursuant to subsection 4 of this article.
- Changes of and additions to the agreement made by the client are only binding if they have been confirmed in writing by a competent officer of CPPR.
- The client can only derive rights from an offer made by CPPR in writing. No rights may be derived from any promises made orally.
- An assignment given to CPPR automatically implies that CPPR has the authority to engage the services of third parties where necessary and to accept any liability limitations of third parties, also on behalf of the client.
- With regard to products or parts of products made by third parties, CPPR can only be regarded as the forwarding supplier by the client; CPPR is not complied to provide the client a guarantee that exceeds that guaranteed by the engaged third parties with CPPR.
ARTICLE 3: PLACE AND METHOD OF DELIVERY
- The delivery takes place ex packing centre, i.e. the VAS floor.
- If it has been agreed that the transport will take place by or on behalf of CPPR, then the purchase will take place at the moment of delivery at the agreed place.
- When the goods are stored for the client by or on behalf of the CPPR at CPPR or a third party, then the delivery takes place the moment the goods are stored.
- CPPR endeavours to deliver the products to be processed to the client within the delivery period agreed in writing by the parties. The agreed delivery times are purely indicative. If the delivery time is exceeded, the client is not authorised to dissolve the agreement, nor to fail to comply with or suspend any obligation which may result for him from the agreement or any other unrelated agreement. Any liability resulting from the exceeding of the delivery time is excluded. This is only deviated from when this involves intent or gross negligence with regard to the exceeding of the agreed delivery period due to an act of CPPR, this explicitly excludes errors made by its staff or the third parties engaged by CPPR. In that case, it is up to the client to assert and prove the intent or gross negligence. The client is then authorised to dissolve the agreement provided he immediately notifies CPPR thereof and notwithstanding CPPR's right to proceed with the agreed deliveries and/or provide the activities and/or services within four weeks after receipt of the notification and demand payment thereof.
- If, upon providing goods for storage and/or processing, the depositor has not provided written instructions to the depositary, then the depositary will store and/or process these goods as it sees fit in a manner customary in the sector. The depositor will always notify the depositary on time and in writing if the depositor considers that a special storage method is required for the goods in order to enable the depositary to take all the necessary preparatory measures; in the absence of such a notification, the depositary cannot be held liable for any loss and/or damage caused during the storage of the goods in question, regardless of the manner in which this was caused.
ARTICLE 4: PURCHASE AND RISK
- The risk of the goods is held by the client as of the moment the goods are delivered and, if the client does not provide its cooperation to the delivery, as of the moment the purchase is refused.
- The client must accept the delivery of the processed products the moment they are offered or delivered. If, however, the client fails to accept the processed products, then CPPR is authorised to store the delivered goods at its own site or elsewhere at the costs of the client, notwithstanding the obligation of the client to pay the agreed processing costs. If the client fails to comply with his payment obligation, then CPPR is also authorised, at its discretion, to dissolve the agreement or declare it dissolved without legal intervention and the client must pay CPPR the full costs, damages and interest incurred this respect.
- Notwithstanding that stated elsewhere in these terms and conditions with regard to the extension of the delivery period, the delivery period is extended for the duration of the delay arising at the side of CPPR as a result of the non-compliance of the client of any obligation resulting from the agreement or any other unrelated agreement and/or any cooperation demanded of him in respect of the performance of the agreement.
- All the transport arranged by the depositary and/or performed by others on the depositary’s behalf is subject to the General Transport Conditions (AVC Conditions) insofar as it involves domestic transport and the CMR Conditions with regard to cross-border transport.
ARTICLE 5: DELIVERED QUANTITY
The delivered quantity, as regards and the weight and the quantity and regulations prescribed by public and/or private law, is deemed to comply with all that agreed or prescribed, unless the client can provide proof to the contrary.
ARTICLE 6: RETENTION OF TITLE
- The goods delivered by CPPR remain the property of CPPR until all the claims CPPR holds on the client on the basis of the agreements concluded by the parties have been paid in full, including interest and costs.
- The items made available by CPPR pursuant to subsection 1, are covered by the retention of title and may only be resold during the course of normal business operations of the client.
- If the other party fails to comply with his obligations or there is a substantive fear that he will be unable to comply with them, CPPR is authorised to remove the delivered goods that are subject to the retention of title referred to in subsection 1 from the client or third parties who hold the product on behalf of the client, or to have them removed. The client must provide his full cooperation in this respect.
- If third parties wish to exercise or apply any right on the items supplied under retention of title, the client must inform CPPR thereof as soon as reasonably can be expected.
- The client agrees to provide its cooperation, within reason, to all the measures CPPR wishes to take to protect its retention of title with regard to the delivered goods.
ARTICLE 7: FORCE MAJEURE
- During the force majeure the delivery and other obligations of CPPR are suspended. The obligations are again activated if the compliance of the obligations is again reasonably possible. Circumstances with regard to machines, persons and/or materials thereof engaged by CPPR during the performance of the agreement or which CPPR tends to engage, which are of such a nature that the performance of the agreement becomes impossible or becomes objectionable and/or disproportionately expensive to such an extent that the compliance of the agreement cannot reasonably be expected, then this is also regarded as a force majeure.
- If CPPR has already partially complied with its obligations upon the commencement of the force majeure, or can only comply with part of its obligations, then CPPR is authorised to separately invoice the client for the goods already delivered or the goods available for delivery and the client must pay this invoice as if it were a separate contract.
ARTICLE 8: OBLIGATIONS OF THE CLIENT
- Upon delivery by CPPR (within the meaning of article 3 subsection 2) the client must inspect the delivered goods in the presence of the driver. The client must determine whether the delivered products are in accordance with the agreement, i.e.:
a. whether the delivered products have been processed in the agreed manner;
b. whether the delivered items meet the (quality) standards that can be expected for the applicable normal use and/or the applicable trade purposes;
c. whether the quantity of the delivered items is in accordance with that agreed. If the shortcoming amounts to less than 5% of the total, then the client must fully accept the delivered goods.
- If the delivery is done in the packing station (as referred to in article 3), then the client must inspect the items immediately in accordance with subsection 1 of this article.
- If the items are delivered at a third party, who holds or will hold them for the client, then the client must perform the inspection referred to in subsection 1 of this article or have it performed on the day of the delivery.
- If the client wishes to file a complaint he must report this to CPPR as soon as possible upon discovering the shortcoming or after he could have reasonably discovered the shortcoming, though no later than within eight hours of the delivery, otherwise the right to complain lapses. This notification, if made orally, must immediately be confirmed to CPPR in writing, i.e. by email, fax, letter or bailiff's writ.
- In the event of a complaint the relevant batch must remain completely present and the client must enable CPPR to have the items viewed or inspected.
- The client must always look after the items with due care.
ARTICLE 9: LIABILITY CPPR
Except in cases involving a force majeure, CPPR is only liable for loss and/or damage when the non-compliance or late compliance or other cause of damage is due to either intent or gross negligence of CPPR or its subordinates, for no more than the invoiced value of the relevant transaction on items delivered or to be delivered at that moment. CPPR is never liable for any other damage, regardless of how this is referred to, except damage resulting from personal injury.
ARTICLE 10: PACKAGING
- Packaging delivered via CPPR, including pallets, crates and boxes for which a deposit is paid, is taken back the moment it is returned at the invoiced price as it applies at that time, plus a fixed packaging fee in accordance with the relevant regulations. Returned casks must be clean and fresh and suitable for (re)use for fresh edible horticultural products.
- Upon returning the packaging via CPPR's own means of transport, the packaging must be sorted and ready for transport; failure to do so will authorise CPPR not to collect the packaging or to recharge the costs.
- Packaging not delivered by CPPR is only accepted insofar as CPPR also sells those products in its own product range.
ARTICLE 11: PAYMENT
- Payment of the delivered goods and provided services must be made within 14 days of the date of the relevant invoice, unless this rule is deviated from by way of a written agreement.
- Each payment received for outstanding invoices are deemed to have been made for the oldest outstanding invoice.
- Compensation with any other claim the client has or considers it has, is not permitted, unless CPPR has sent the client a credit invoice or has been ordered to pay the client on the basis of a judgement rendered by the court.
- If the period referred to in subsection 1 has been exceed, the client must pay the statutory interest for trade transactions, notwithstanding CPPR's right to claim statutory payment of damages.
ARTICLE 12: DISSOLUTION AND LIABILITY CLIENT
- If the client fails to comply with his obligations (on time), CPPR has the right to suspend any further delivery. The client will then be in default. In that case CPPR has the right to dissolve the agreement without legal intervention by way of a written statement and the client is liable for any damage suffered by CPPR in this respect, such as loss of profit, suffered loss, product damage, costs and interest, transport costs, lost or paid commission, legal and extra-judicial costs and any other costs directly or indirectly related to the purchase.
- All the costs incurred by CPPR for legal and extra-judicial costs in the event of the non-compliance or incorrect or late compliance of the client are fully payable by the client. The extra-judicial costs incurred by CPPR will amount to 15% of the total amount payable by the client to the supplier, whereby a minimum of € 125 applies.
ARTICLE 13: INDUSTRIAL AND INTELLECTUAL PROPERTY RIGHTS
- CPPR explicitly retains the right to any intellectual and/or industrial property rights (brands) related to the products it supplies.
- The items delivered to CPPR cannot breach any patent, license, copy right, breeder's rights, registered drawing or design, trade mark or trade name. The supplier indemnifies CPPR and its client against any claims of such a nature and irrevocably agrees to pay any damages suffered as a result thereof.
ARTICLE 14: APPLICABLE LAW
- All agreements concluded with CPPR are exclusively governed by Dutch law.
- The Dutch language version is leading. As regards foreign transactions, the Uniform Law on the International Sale of Goods and the applicability of the Vienna Convention on Contracts for the International Sales of Movable and Physical Goods are explicitly excluded, with the exception of articles 39, 50 and 52 of the Convention.
ARTICLE 15: DISPUTES
- Any disputes arising from agreements concluded with CPPR, including claims for payment in arrears, will exclusively be brought before the competent court in district of CPPR's place of residence.
- In deviation of that stated in subsection 1, the parties can agree in writing that another competent authority settles the dispute.