General Terms and Conditions EFC CV
1. Application. Only these terms and conditions, to the exclusion of all others, shall apply to all present and future agreements, offers, quotations, orders, invoices and credit notes between EFC on the one hand and the grower, buyer, customer or any other (contract) party of EFC (the “Co-contractor”) on the other hand. EFC reserves the right to amend these terms and conditions at any time, subject to prior notice to the Co-contractor. EFC does not accept any other conditions, even if not expressly notified upon receipt thereof, or in case of incompatible clauses. The parties expressly exclude the application of Article 5.23, paragraphs 3 and 4 Civil Code and agree that the “knock-out-rule” contained therein does not apply in their contractual relationship
2. Orders - Agreement – Cancellation. Orders are considered irrevocable and binding on the Co-contractor. The agreement is concluded when the order is confirmed in writing and expressly by EFC, or full or partial execution of the order has taken place. EFC reserves the right to accept or refuse orders at its own discretion. Orders may not be cancelled by the Co-contractor, except with the agreement of EFC, which may claim an appropriate compensation for damages, assessed at a minimum of 30% of the price. EFC reserves the right to prove any higher damage or to demand performance of the agreement. The parties hereby exclude the application of article 5.88, §1 Civil Code. Any person or company, which places orders on behalf of third parties or with request to invoice them to third parties, makes a strong case in accordance with Article 5.106 of the Civil Code and will be personally liable for payment, even if EFC agreed to this method of invoicing.
3. Quality of delivered products. It is inherent to the goods, which are the object of the sale, that they are subject to quality fluctuations in function of the growing season and/or climate or weather conditions. If, as a result of such quality fluctuations, EFC does not have trees of the stipulated quality available, the Co-contractor accepts that trees of another quality are the subject of the sale, albeit at an adjusted price, which EFC determines. The Co-contractor 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 in the crop and other unforeseen circumstances, including weather and climatic conditions, no normal harvest is obtained, EFC shall be relieved of its obligation to deliver, without being liable to the Co-contractor for damages.
4. Payments. Prices are exclusive of VAT and other levies, packaging costs, cooling costs, transport costs, bank charges and/or costs related to import and export of the goods. Invoices must be paid in cash. In the absence of protest of an invoice, within 8 days of the invoice date, the Co-contractor shall be deemed to accept the invoice. The Co-contractor cannot apply set-off or suspend payment because of EFC's failure to fulfill its obligations. 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 late, incomplete or non-payment of one past due invoice by the Co-contractor shall render all invoices, including those not yet due, payable. The possible use of promissory notes, checks or authorization to draw bills of exchange to cover the agreed price shall never be considered a debt re-nomination of the original invoice, nor shall it limit or modify any “right of retention”, agreement or territorial jurisdiction. EFC reserves the right to suspend the execution of an order/agreement or to terminate the agreement without any compensation and without prior notice of default being required, including in the following cases:
- when the Co-contractor's account with EFC shows a negative due balance;
- when the Co-Contractor shows financial insolvency or negative solvency.
EFC may demand guarantees from the Co-contractor at any time. These guarantees shall be a condition precedent to the conclusion or further performance of the agreement. To the extent the Co-contractor fails to comply with any payment terms or other obligations, then EFC has the right to suspend or defer its obligations in connection with other ongoing contracts between the parties.
5. Refusal to take delivery or late delivery of goods. In case 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 Co-contractor or third parties are responsible, stocking costs may be charged to the Co-contractor, this without prejudice to EFC's right to rescind the agreement, in which case compensation in the amount of 30% must be paid by the Co-contractor to EFC (without prejudice to EFC's right to prove its higher damage). The parties exclude the application of Article 5.88, §1 Civil Code.
6. Risk allocation with respect to the goods. EFC does not guarantee any commercial or economic success to the Co-contractor by the delivery of trees. Delivery shall always take place in the tree nurseries, (contractually) connected to EFC, ex warehouse. The Co-contractor shall bear all costs and risks associated with the transportation of the goods from the nursery to the orchards of the Co-contractor. The delivery date shall only serve as an indication and shall not be binding on EFC. Under no circumstances can a delay on the agreed delivery date give rise to compensation or dissolution of the agreement.
7. Control of delivered goods. Upon delivery of the goods, the Co-contractor shall inspect the goods, including quality, type, uniformity, quantity and price. After this inspection, the Co-Contractor shall be obliged to sign a delivery note for approval. In case the goods are not satisfactory, the Co-contractor must immediately and at the latest within 72 hours after receipt of the goods submit a written, motivated complaint to EFC. No complaints will be accepted after loading of the goods by the Co-contractor. Any right of complaint lapses if the Co-contractor has not treated the delivered goods, during the period they have been in the Co-contractor's possession, with due care. If any complaint is justified, EFC's liability shall in any case (barring intent or fraud) be limited to the replacement free of charge of the goods, which are found to be defective. The Co-contractor expressly acknowledges that any damages, including any indirect damages, will not be recovered from EFC.
EFC shall not be 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 release, 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 Co-contractor cannot claim compensation, indemnification, costs or expenses from EFC if, despite the fact that reasonable precautionary measures have been taken at the level of selection, a hidden imperfection or abnormality of a genetic or physiological nature should occur. The content of invoices, which 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 Co-contractor the right to defer or suspend payment of the price, even partially, nor the right to cancel the entire order or delivery.
8. Liability of EFC. Except for fraud or willful misconduct, EFC is not responsible for incidental or consequential damages (including: injuries, property damage, financial loss, lost profits, personnel costs, damages to third parties, loss of income, etc.). EFC's maximum liability (including in cases of fraud or willful misconduct) shall be limited to the amount of the invoice amount of the goods or services delivered. Except in case of willful misconduct or in case of an error, which affects the life or physical integrity of a person (i) the Co-contractor cannot hold EFC liable, (ii) EFC cannot be held liable by third parties and/or (iii) the Co-contractor cannot hold EFC's auxiliary persons liable, for an extra-contractual error made within the scope of the performance of the agreement between the Co-contractor and EFC. The application of article 6.3 Civil Code is excluded to the widest extent possible. The Co-contractor shall fully indemnify and hold EFC and/or its auxiliary persons harmless in this respect.
9. Propagation ban. The Co-contractor shall never be entitled to multiply, sell, alienate and/or deliver starting, propagation and/or plant material and/or trees to third parties without the express permission of EFC.
10. Retention of title. All merchandise shall remain the property of EFC until full payment of prices due.The Co-contracting Party shall undertake - if necessary on behalf of a third party - that, at EFC's first request, it will be communicated where the goods are located and that they will be made available again to EFC at the Co-contractors 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.
11. Intellectual Rights. The Co-contractor acknowledges and accepts that all intellectual property rights in or relating to the goods and/or arising from the agreement between the parties are and shall remain the exclusive property of EFC (unless the agreement expressly provides otherwise). Intellectual property rights include, but are not limited to, patent rights, breeders' rights, trademarks, copyrights, rights to designs, models, drawings, databases, software, hardware, trademarks, proprietary rights, know-how, including trade secrets and other confidential information and any other form of legally protected intellectual or industrial property under any jurisdiction. Except where a license agreement has been unsigned between EFC and the Co-contractor, in no event shall the agreement between the parties be intended or result in any transfer or use of intellectual property rights between the parties.
12. 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 EFC's reasonable control, 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, equipment shortages or lack of indispensable products, weather conditions, which make the performance of the agreement temporarily difficult or impossible, errors or delays on the part of EFC's suppliers, etc.
13. Data protection. EFC may process the Co-contractor's personal data as part of the execution 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 insofar 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 these personal data for the duration of the agreement and for a period of 1 year after the end of the agreement, without prejudice 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 Co-contractor 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 Co-contractor has the right to lodge a complaint with the supervisory authority.
14. Applicable law - competent court. All agreements, as well as these general conditions, are governed exclusively by Belgian law (unless the agreement between the parties stipulates otherwise), to the exclusion of the rules of international private law. Only the courts of the district of Hasselt are competent to take cognizance of any disputes relating to the existence, formation, execution, interpretation of the agreement. All (attorney's) fees related to recovery through the courts will be borne by the Co-contractor.The application of the Vienna Convention on Contracts for the International Sale of Goods and the rules of International Private Law are hereby expressly excluded.