GENERAL TERMS AND CONDITIONS

FreshPride B.V., located in Barendrecht, Handelscentrum ZHZ 55, as well as its successors and/or affiliated companies, hereinafter referred to as FreshPride B.V., has established the following General Terms and Conditions:

Article 1 Definitions

1. Counterparty: any (legal) person entering into an agreement with FreshPride B.V., or to whom FreshPride B.V. makes an offer and/or quotation, including their representative(s), authorized individual(s), successors in title, and heirs;
2. Agreement: any agreement concluded between FreshPride B.V. and the Counterparty, any amendments or additions thereto, as well as all (legal) actions in preparation and execution of that Agreement;

Article 2 Applicability

1. These General Terms and Conditions apply to all quotations provided by FreshPride B.V., offers made, concluded Agreements, as well as accepted assignments. Consequently, these General Terms and Conditions apply to all (legal) actions (including omissions) of FreshPride B.V. and its Counterparty in this regard.
2. Agreements as referred to in section 1 of this article include sales, commission, consignment, framework, and related agreements.
3. The Counterparty permits FreshPride B.V. to use third parties, not being employees of FreshPride B.V., for the execution of the Agreement. The General Terms and Conditions also apply to legal actions carried out by these third parties in the context of the execution of obligations incumbent upon FreshPride B.V. under the Agreement.
4. Deviations from and/or additions to any provision in these General Terms and Conditions only bind FreshPride B.V. if these deviations and/or additions have been explicitly and unconditionally agreed upon in writing between FreshPride B.V. and the Counterparty. Any agreed deviations and/or additions only apply to the respective Agreement.
5. If, upon accepting an offer or entering into an Agreement, the Counterparty refers to general terms and conditions other than those of FreshPride B.V. in order to apply them to the Agreement, it is stipulated that different general terms and conditions than the present terms are only applicable to the Agreement if FreshPride B.V. has explicitly and unconditionally accepted these general terms and conditions in writing.
6. Should any provision of these General Terms and Conditions be deemed void after intervention by a judicial authority, only the relevant provision will be excluded. All other provisions will remain fully effective.

Article 3 Offer and Prices

1. All agreements concluded by FreshPride B.V. are deemed to have been made at the establishment of FreshPride B.V., namely Barendrecht, both concerning the execution and payment of the agreement.
2. All amounts mentioned in quotations, offers, Agreements, and orders are expressed in euros unless parties have agreed otherwise in writing. Additionally, all specified amounts are exclusive of transportation costs and value-added tax, unless otherwise agreed upon in writing by the parties.
3. Any offer made by FreshPride B.V. is entirely non-binding.
4. FreshPride B.V. reserves the right to refuse orders without stating reasons.
5. FreshPride B.V. is not obliged to uphold an offer and/or an agreement at a stated price if that price is based on a printing and/or typographical error.

Article 4 Agreement

1. If a quotation contains a non-binding offer that is accepted by a third party (Counterparty), FreshPride B.V. has the right to revoke the offer within two working days after receiving the acceptance.
2. The Counterparty will receive a written order confirmation or a written record of the Agreement from FreshPride B.V. This written record may consist of the invoice and/or order form.
3. If, after the Agreement is concluded, parties have made additional or supplementary agreements or changes, these are only binding if and to the extent that these agreements are documented in writing. Again, the written record can consist of the invoice and/or order form.

Article 5 Cancellation of Agreement

1. The Counterparty can only cancel the Agreement in writing before the commencement of the Agreement’s execution. In the event of cancellation, all incurred preparatory costs will be invoiced to the Counterparty by FreshPride B.V., as stipulated hereinafter.
2. If cancellation of the agreement occurs within the 72 hours preceding the agreed delivery time, the Counterparty, in addition to the preparatory costs, owes a compensation determined as 50% of the agreed price. Should the cancellation take place later than 24 hours before the agreed delivery time, the Counterparty is liable for the full agreed price.
3. Regardless of the cancellation timing, the Counterparty is obligated to compensate FreshPride B.V. for expenses payable to third parties due to and in connection with the canceled Agreement.

Article 6 Delivery

1. The agreed delivery time is not a fixed deadline unless parties have explicitly agreed otherwise.
2. Delay in delivery, within reasonable limits, does not entitle the Counterparty to dissolve the Agreement or claim damages.
3. The quantity delivered by FreshPride B.V. is assumed to comply with the agreed-upon amount in terms of number, weight, as well as public and/or private law requirements, unless the Counterparty provides evidence to the contrary. This implies an explicit presumption of evidence agreed upon by the parties.
4. Delivery takes place at the customer’s location unless otherwise agreed upon in writing by the parties. The moment of delivery is when the goods are handed over to the customer.
5. If the parties have agreed that FreshPride B.V. will store the goods to be delivered for the Counterparty, whether at its own premises or at a third party’s, delivery occurs when the goods are stored.
6. FreshPride B.V. is entitled to demand sufficient assurance for the Counterparty’s payment obligations before fulfilling its obligations under the Agreement.
7. If the Counterparty still has any outstanding payment obligations to FreshPride B.V., especially if invoices from FreshPride B.V. remain wholly or partially unpaid, FreshPride B.V. has the right to suspend delivery obligations until the Counterparty has fulfilled all its obligations.

Article 7 Acceptance and Complaints

1. Upon delivery of the agreed-upon goods by FreshPride B.V., the Counterparty is required to inspect and verify these goods immediately. This inspection and verification must occur in the presence of the driver. The Counterparty must verify if the delivered goods meet the provisions of the Agreement, namely: A. if the correct items have been delivered; B. if the delivered items meet the agreed-upon quality standards, i.e., the standards suitable for normal use and/or for commercial purposes; C. if the delivered goods regarding quantity (number, amount, weight) correspond to the agreed-upon terms. If the discrepancy observed by the Counterparty is less than 10%, the Counterparty is obligated to fully accept the delivered goods, with a proportionate reduction in the agreed-upon price.
2. If goods are delivered warehouse-to-warehouse, the Counterparty must inspect the delivered goods in the sales area of FreshPride B.V.
3. Any deficiencies and objections that do not pertain to conditions as mentioned in section 1 of this article under subpoint c must be reported in writing to FreshPride B.V. immediately upon discovery but no later than 8 hours after delivery. If FreshPride B.V. does not promptly receive a complaint after the goods are delivered, it is deemed that the goods were delivered in accordance with the Agreement without any deficiencies.
4. Complaints regarding non-immediately visible defects must be reported in writing to FreshPride B.V. as soon as possible after discovery, allowing FreshPride B.V. the opportunity to examine the accuracy of the reported complaints on-site. The Counterparty should facilitate FreshPride B.V. in verifying the legitimacy of the Counterparty’s complaint. Failure to submit a written complaint to FreshPride B.V. within eight hours of delivery establishes that any deficiency or defect was not present at the time of delivery but emerged thereafter.
5. The provisions of this article apply without exception if the goods delivered by FreshPride B.V. for the Counterparty are delivered to a third party. The Counterparty cannot claim that they did not inspect the delivered goods because they were stored elsewhere, at a third party.
6. The Counterparty is obliged to act at all times as a careful debtor and possessor for the preservation of the goods.

Article 8 Payments

1. The Counterparty is required to pay the agreed price after receiving the invoice related to the delivery – without discount or the right to set off – within 30 days from the invoice date, unless otherwise specified.
2. Set-off by the Counterparty of the amounts invoiced by FreshPride B.V. with a counterclaim raised by the Counterparty, or suspension of payment by the Counterparty due to a claimed counterclaim, is not permitted unless FreshPride B.V. explicitly and unconditionally acknowledges the liability of the counterclaim, or the existence of the counterclaim has been irrevocably established in court.
3. In the event of exceeding the payment term, the Counterparty owes a penalty interest of 1% per month, without prejudice to other rights of FreshPride B.V., such as the right to claim compensation for extrajudicial costs and statutory interest.
4. Upon exceeding the payment term, the Counterparty – without prior notice of default – is liable for the legal commercial interest on the outstanding amount. If it is determined in court that the Counterparty is not liable for the legal commercial interest, they will owe FreshPride B.V. the statutory interest.
5. If even after a formal notice of default by FreshPride B.V., the Counterparty remains negligent in paying the outstanding amounts, they are required to compensate FreshPride B.V., in addition to the total amount due, consisting of the outstanding amounts plus the owed interest, with extrajudicial collection costs. The amount of the extrajudicial collection costs is fixed at 15% of the principal sum due.
6. Payments made by the Counterparty shall first be allocated to satisfy all outstanding interest and costs and subsequently to fulfill the matured invoices that have been outstanding for the longest period, even if the Counterparty states that the payment is for a later invoice.

Article 9 Retention of Title

1. Goods delivered by FreshPride B.V. remain the property of FreshPride B.V. until complete payment of all claims of FreshPride B.V. against the Counterparty arising from agreements between them, including interest and costs.
2. The Counterparty is only authorized to resell the goods delivered by FreshPride B.V. that fall under the retention of title described in section 1 of this article if resale is within the normal business operations of the Counterparty.
3. If the Counterparty fails to fulfill their obligations, or if FreshPride B.V. has reasonable grounds to suspect the Counterparty cannot fulfill their obligations under the Agreement, or if it is suspected that the Counterparty refuses to fulfill their obligations, FreshPride B.V. is entitled to repossess the delivered goods – on which the aforementioned retention of title is based – from the Counterparty or the third party holding the goods for the Counterparty. The Counterparty is obliged to cooperate with such actions by FreshPride B.V.
4. If third parties intend to establish or assert any right over the goods delivered under the retention of title by FreshPride B.V., the Counterparty must immediately notify FreshPride B.V. of this fact. Furthermore, the Counterparty must inform the third party that the goods were delivered under retention of title. The Counterparty must provide the third party with the agreement between the parties showing that a retention of title was made concerning the delivered goods.
5. The Counterparty is obligated to assist in any measures FreshPride B.V. wishes to take to safeguard its ownership rights regarding the goods delivered by FreshPride B.V.

Article 10 Liability and Risk

1. If the Counterparty has goods delivered by FreshPride B.V. in their possession that are owned by FreshPride B.V. (including packaging) and/or fall under the retention of title as mentioned in article 9 of these General Terms of Sale, the Counterparty is liable for damages caused by or with these goods from the moment of delivery until their return or transfer of ownership.
2. Furthermore, the Counterparty is liable – if they have goods in their possession belonging to FreshPride B.V. (including packaging) and/or falling under the retention of title as mentioned in article 9 of these General Terms of Sale – for damages incurred by FreshPride B.V. due to damage, loss, or destruction of these goods during the period between the delivery by FreshPride B.V. and the return of these goods or transfer of their ownership.
3. If FreshPride B.V. has to exercise its retention of title due to circumstances attributable to the Counterparty but nonetheless suffers damage, the Counterparty is liable for the damages incurred by FreshPride B.V.
4. In the event that, in the context of executing the Agreement, the Counterparty has goods belonging to FreshPride B.V. in their possession (including packaging) or falling under the retention of title as mentioned in article 9 of these General Terms of Sale, and there is theft, loss, or damage to the goods delivered by FreshPride B.V., the Counterparty must immediately report this to FreshPride B.V. The Counterparty must also file a report with the police in the municipality where the theft occurred or where the damage was caused and provide FreshPride B.V. with a copy of this report in the case of theft or vandalism.
5. If FreshPride B.V. has delivered goods to the Counterparty that belong to a third party, the Counterparty indemnifies FreshPride B.V. against all claims from this third party related to damages caused by or with the goods supplied by FreshPride B.V. to the Counterparty, as well as damages to the goods delivered by FreshPride B.V. to the Counterparty.
6. If the Counterparty or a third party to whom the Counterparty has resold the goods delivered by FreshPride B.V. executes or arranges a recall, FreshPride B.V. can only be held liable for (a portion of) the associated costs if i) it is established that FreshPride B.V. is responsible for the circumstances leading to the recall, and ii) FreshPride B.V. has been consulted and had a say before the recall was executed, and iii) it is established that the Counterparty has acted as a reasonably prudent and competent professional and has attempted to minimize the costs associated with the recall.
7. If FreshPride B.V. is liable for any damages, its liability is limited to the amount paid out under the business liability insurance of FreshPride B.V. in the respective case, plus the deductible under this insurance. If, for any reason, no payment is made under this insurance, the liability is limited to the amount of the invoice corresponding to the Agreement based on which the Counterparty claims, with the understanding that any liability is limited to an amount of EUR 40,000

Article 11 Force Majeure

1. In the event of force majeure, FreshPride B.V. is entitled to either suspend the execution of the Agreement or to wholly or partially dissolve the Agreement without the Counterparty having any claims for damages against FreshPride B.V.
2. Force majeure on the part of FreshPride B.V. includes, among other things:
• Strikes by the employees of FreshPride B.V. or by third parties engaged by FreshPride B.V. for the execution of the Agreement;
• Illness of employees of FreshPride B.V. or by third parties engaged by FreshPride B.V. for the execution of the Agreement;
• Measures and/or prohibitions by the Dutch and/or foreign authorities to which FreshPride B.V. is subject;
• Unforeseeable and unpredictable traffic obstructions;
• Accident(s) involving a means of transport used for the execution of the Agreement, as well as unforeseen technical defects in these means of transport;
• (Attributable) failure to perform by suppliers of FreshPride B.V.;
• Theft of items required for the execution of the Agreement;
• And all other unforeseen circumstances preventing FreshPride B.V. from timely and properly executing the Agreement that are not at the expense and risk of FreshPride B.V.
3. If FreshPride B.V. has partly fulfilled its obligations at the onset of force majeure, or can only partly fulfill its obligations, FreshPride B.V. is entitled to invoice the already delivered or partially delivered goods separately. The Counterparty is obliged to pay the invoice as if it were a separate agreement.
4. All agreements concerning the sale of agricultural products are subject to the reservation of harvest. If, due to a disappointing harvest in terms of the quantity and/or quality of agricultural products, a considerable number of products are less available, including rejection by competent authorities than was reasonably expected at the conclusion of the agreement, FreshPride B.V. has the right to reduce the quantities sold accordingly. By delivering this reduced quantity, FreshPride B.V. fulfills its delivery obligations. FreshPride B.V. is then not obligated to supply replacement agricultural products and is also not liable for any damages.

Article 12 Default and Termination

1. If the Counterparty does not, improperly, or untimely fulfill any obligations arising from the Agreement concluded with FreshPride B.V. or the law, including the obligation for timely payment as stipulated in article 8 of these General Terms of Sale, the Counterparty is in default without notice of default, and FreshPride B.V. is entitled to suspend the execution of the Agreement and/or wholly or partly dissolve the Agreement and directly related Agreements without being held liable for any damages, without prejudice to further rights held by FreshPride B.V.
2. If the Counterparty is in default, they owe FreshPride B.V. the legal (commercial) interest as well as all (extrajudicial) costs reasonably incurred by FreshPride B.V. to establish the liability of the Counterparty and/or to obtain satisfaction of its claim, falling within the scope of article 6:96 section 2 of the Civil Code.
3. In the event of (provisional) suspension of payment or bankruptcy of the Counterparty, cessation or liquidation of the Counterparty’s business, all Agreements with the Counterparty are automatically dissolved unless FreshPride B.V. notifies the Counterparty within a reasonable period that they demand fulfillment of (part of) the relevant Agreement(s). In this case, without a notice of default, FreshPride B.V. is entitled to suspend the execution of the relevant Agreement(s) until payment is sufficiently secured, without prejudice to further rights held by FreshPride B.V.
4. FreshPride B.V. has the right to terminate the Agreement in the event of permanent force majeure on the part of the Counterparty. In this case, the Counterparty must reimburse all costs incurred and yet to be incurred by FreshPride B.V.
5. In each of the cases mentioned in sections 1, 2, 3, and 4 of this article, all claims of FreshPride B.V. against the Counterparty are immediately due and the Counterparty is obliged to immediately return rented or unpaid items.
6. The Counterparty must immediately inform FreshPride B.V. if a garnishment is made on movable or immovable properties owned by FreshPride B.V. and in the possession of the Counterparty in the context of executing the Agreement.
7. In the event of bankruptcy or suspension of payment, the Counterparty must immediately inform FreshPride B.V. about this and immediately show the agreement to a bailiff, curator, or administrator while pointing out the property rights of FreshPride B.V..

Article 13 Packaging

1. FreshPride B.V. utilizes packaging in the course of delivering its goods. Packaging includes, among other items, pallets and crates. If FreshPride B.V. charges a deposit for the packaging, the packaging will be taken back at the applicable invoice price at the time of return (in the case of transactions in foreign currency, the packaging will be taken back at the exchange rate applicable at the time of delivery). For the acceptance of the returned packaging, a fixed cost reimbursement may be charged according to the relevant scheme. Upon request, the Counterparty will be provided with this scheme.
2. The packaging that the Counterparty intends to return must be sufficiently clean and fresh such that, without further actions on the part of FreshPride B.V., it is suitable for use with fresh edible horticultural products.
3. If the return of packaging is to take place using FreshPride B.V.’s own transport, the Counterparty must ensure that the packaging is sorted and ready for transport.
4. Packaging not supplied by FreshPride B.V. will only be taken back if and to the extent that FreshPride B.V. includes the respective products in its own assortment and the packaging is in good condition.

Article 14 Industrial and Intellectual Property Rights

1. FreshPride B.V. expressly reserves any rights of intellectual and/or industrial property (brands) concerning the products it supplies.
2. The Counterparty is not allowed to infringe upon the intellectual and/or industrial property rights of a third party through the use of products supplied by FreshPride B.V. The Counterparty indemnifies FreshPride B.V. against any claims from third parties resulting from an infringement of intellectual and/or industrial property rights made with the help of goods supplied by FreshPride B.V., occurring after FreshPride B.V. has delivered the goods to the Counterparty.

Article 15 Applicable Law

1. The legal relationship between FreshPride B.V. and the Counterparty is governed by Dutch law.

Article 16 Disputes

1. Disputes arising from an order, quotation, offer, or Agreement to which these General Terms of Sale apply, including conflicts related to these General Terms of Sale, will be exclusively settled by the competent court in the district where FreshPride B.V. is established, provided that this choice of forum does not preclude the right of FreshPride B.V. to settle a dispute through arbitration or binding advice.
2. Parties may, contrary to the provisions in section 1 of this article, agree in writing to submit the dispute for resolution to the competent court in a different district.