General Terms and Conditions EFC CV
Only these terms and conditions, to the exclusion of all others, apply to all present and future sales and purchase agreements between EFC and the grower. EFC does not accept any other general terms and conditions, even if not expressly notified upon receipt thereof.
Orders are considered binding on the grower. They cannot be cancelled, except with the agreement of EFC, which may claim an appropriate compensation for this, estimated at a flat rate and minimum of 30% of the sale price. EFC reserves the right to prove any higher damages or to demand the fulfillment of the agreement. The parties hereby exclude the application of article 5.88 Civil Code. Any person or company placing orders on behalf of third parties or requesting them to be invoiced to third parties makes a strong case pursuant to Art. 5.106 of the Civil Code and will be personally liable for payment even if EFC agreed to this method of invoicing.
It is inherent to the goods which are the subject of the sale that they are subject to quality fluctuations in function of the growing season. If as a result of such quality fluctuations EFC does not have trees of a predetermined quality available, trees of another quality will be the subject of the sale, albeit at an adjusted price determined by EFC. The buyer waives its right to request a price reduction. If due to such quality fluctuations EFC does not have trees of a predetermined quality available, trees of a different quality will be the object of the sale, albeit against payment of an adjusted price to be determined by EFC. The buyer waives its right to request a price reduction. If due to force majeure, which shall in any case include disease, frost, hail damage, storm, flooding of the crop and other unforeseen circumstances, a normal harvest is not obtained, EFC shall be released from its obligation to deliver, without being liable to pay compensation to the grower.
Prices do not include V.A.T., packaging costs, cooling costs, transportation costs, bank charges and costs associated with importing and exporting the goods. Unless otherwise indicated on the invoice, goods will be cash paid. Non-payment shall make all other claims against the grower due immediately and by operation of law. In the event of late payment, interest calculated in accordance with the Law on Combating Late Payment in Commercial Transactions of August 2, 2002, as amended from time to time, as well as liquidated damages in the amount of 10% of the invoice amount shall be payable from the due date of the invoice without prior notice of default. The possible use of promissory notes, checks or permission to draw drafts to cover the agreed price shall never be considered a renewal of the original invoice, nor shall it limit or modify any "lien," agreement or territorial jurisdiction.
EFC reserves the right to suspend the execution of an order or terminate the agreement without any compensation, including in the following cases:
- where the grower's account with EFC shows a negative balance due;
- when the grower shows financial insolvency or negative solvency.
EFC may at any time demand the necessary guarantees from the grower. These guarantees are a condition precedent to the conclusion or further performance of the agreement. To the extent the grower fails to comply with any payment terms or other obligations, EFC shall have the right to suspend or defer its obligations in connection with other pending contracts between the parties.
5. Refusal to take delivery or late delivery.
In the event of refusal to take delivery or if there is a delay in delivery as a result of a suspension of an order for which the grower or third parties are responsible, stocking costs may be charged to the grower, this without prejudice to EFC's right to terminate the agreement, in which case compensation in the amount of 30% must be paid (without prejudice to EFC's right to prove its higher damage). The parties exclude the application of article 5.88 Civil Code. In case of a refusal to take delivery or if there is a delay in delivery as a result of a suspension of an order for which the grower or third parties are responsible, stocking costs may be charged to the grower, this without prejudice to EFC's right to terminate the agreement, in which case compensation in the amount of 30% must be paid (without prejudice to EFC's right to prove its higher damage). The parties exclude the application of article 5.88 Civil Code.
6. Risk allocation.
EFC does not guarantee commercial or economic success to the grower through the delivery of trees. Delivery is always ex warehouse in the tree nurseries associated with EFC. The grower bears all costs and risks associated with the transportation of the goods from the nursery to the grower's orchards. The delivery date is only an indication and is not binding for EFC. A delay in the agreed delivery date can under no circumstances give rise to compensation or dissolution of the agreement.
7. Control of delivered goods.
Upon delivery of the goods, the grower will check the goods, including quality, type, uniformity, quantity and price. After this inspection, the grower is obliged to sign a delivery note for approval.
If the goods are not satisfactory, he will immediately and at the latest within 72 hours after receipt of the goods submit a written, motivated complaint to EFC. No further complaints will be accepted after the grower has loaded the goods. Any right of complaint lapses if the grower has not treated the delivered goods with due care during the period they are at the grower's premises. If a complaint is justified, the liability of EFC shall in any case be limited to the replacement free of charge of the goods found to be faulty. The grower explicitly acknowledges that any damage, including any indirect damage, cannot be recovered from EFC.
EFC is not liable for Nectria, unless occurring on the rootstock and/or upper stem of the trees and then only for a maximum of 1 (one) year after lending, in which case its liability is limited to the replacement free of charge of the goods, which are found to be defective. All other Nectria infections are excluded.
Due to the genetic instability of the plants and the unforeseeable nature of mutations, the grower cannot claim compensation, indemnification, costs or expenses from EFC if, despite the fact that all possible precautions have been taken at the level of selection, a hidden imperfection or deviation of a genetic or physiological nature should occur. The contents of invoices that are not disputed by registered letter within eight days of their sending shall be considered as definitively accepted. The reporting of complaints does not give the grower the right to delay or suspend payment of the price, even partially, or the right to cancel the entire order or delivery.
Except in the case of fraud or willful misconduct, EFC shall not be liable for incidental or consequential damages (including, but not limited to: injuries, property damage, financial loss, lost profits, personnel costs, damages to third parties, loss of income). In the case of fraud or willful misconduct, EFC's maximum liability for incidental or consequential damages shall not exceed the purchase price of the goods.
8. Propagation ban.
The grower is never entitled to multiply, sell, alienate and/or deliver starting, propagating and/or planting material and/or trees to third parties without the express permission of EFC.
9. Retention of title.
All goods remain the property of EFC until full payment of the prices due. The grower warrants-if necessary on behalf of a third party-that, at EFC's first request, the whereabouts of the goods will be communicated, and that they will be returned to EFC at the grower's expense and risk, if requested by EFC. To the extent necessary, an irrevocable mandate to repossess is hereby granted to EFC as well as a mandate to enter the necessary orchards for this purpose.
10. Force majeure.
The risk, including as a result of extraneous cause, coincidence and force majeure, of the goods sold is transferred at the time of the consensus on the terms of the sale. Force majeure or non-attributable non-performance shall include any event beyond the reasonable control of EFC, including but not limited to strikes, lockouts, interruptions in transportation, government or administrative orders or regulations, inability to obtain natural gas and/or other fuels, supply difficulties, scarcity of materials or lack of indispensable products, weather conditions that make performance of the agreement temporarily difficult or impossible, errors or delays on the part of EFC's suppliers...
11. Data protection.
EFC may process the customer's personal data as part of the performance of the agreement. This concerns in particular personal information (name, address, telephone number, etc.), contact information (coordinates, e-mail address) and financial information (account number, method of payment, etc.). EFC shall only process such personal data to the extent and to the extent necessary for the performance of the agreement and any legal obligation, after which EFC shall delete such personal data. EFC will process this personal data during the term of the agreement and a period of 1 year after the end of the agreement, without prejudice, however, to relevant and applicable, regulatory retention obligations. EFC provides adequate guarantees regarding the application of appropriate technical and organizational measures so that the processing of personal data complies with the requirements of the General Data Protection Regulation. EFC guarantees the security and confidentiality of this personal data. EFC will not transfer this personal data to third parties or, a third country or an international organization, except pursuant to a legal obligation. To the extent that EFC resorts to a processor for the processing of the personal data, it guarantees that such processor will be bound by the same obligations as defined in this provision. The customer has, with respect to the personal data, a right of access, rectification, erasure, restriction of processing, transfer, objection or opposition under the conditions and modalities defined in the General Data Protection Regulation. The customer has the right to lodge a complaint with the supervisory authority.
12. Applicable law - competent court.
All sales contracts between the parties, as well as these general conditions of sale, are governed exclusively by Belgian law. Only the courts of the district of Hasselt are competent to take cognizance of any disputes. All (attorney's) fees in connection with collection through the courts shall be borne by the grower. The application of the Vienna Sales Convention and the rules of International Private Law are expressly excluded.