FRUTCO AG – Fruit Group AG – Frutco (Netherlands) BV
General Terms and Conditions (GTC)
(Edition 01/2024 – valid from February 1, 2024)
1. General and Scope
1.1 The General Terms and Conditions of FRUTCO in their current version, which can be viewed at www.fructo.ch (hereinafter the “GTC”), shall apply to all business transactions between Frutco AG, Fruit Group AG and Frutco (Netherlands) BV (hereinafter “FRUTCO”) and the Customer. These take precedence over any conflicting conditions of the Customer, unless FRUTCO would expressly accept these in writing. They apply to all points which are not mutually regulated in writing in a different manner. If FRUTCO acts as a purchaser, the general purchasing conditions of FRUTCO listed in Section 14ff additionally apply.
1.2 Until an express contrary agreement, the GTC apply to all current and future business transactions between FRUTCO and the Customer, even if these are not expressly referred to in individual orders.
2. Definitions
A distinction is made between the following types of orders:
- Framework agreements with partial call-off
- Individual orders/call-off
3. Quotations
3.1 FRUTCO’s quotations are subject to change. Prices and conditions are only binding upon dispatch of written order confirmation by FRUTCO.
3.2 The price calculations prepared by FRUTCO are based on information provided by the Customer. To the extent that the Customer does not provide clear specifications, the products offered are based on FRUTCO specifications.
4. Contract Conclusion
4.1 Orders are accepted verbally or in written form.
4.2 The contract is only deemed concluded when FRUTCO confirms acceptance of an order in writing or by email after receipt. Verbal agreements must be confirmed in writing by FRUTCO in the same manner to become valid.
4.3 Ownership of the delivered goods remains with FRUTCO until full payment.
5. Prices
5.1 Unless otherwise agreed, all prices are net (excluding VAT) according to the agreed Incoterms.
5.2 The agreed Incoterms also apply to ancillary costs. If nothing is agreed in writing, all ancillary costs such as freight, customs, taxes, duties, fees, insurance, export, transit, import and other permits as well as certifications shall be at the Customer’s expense.
5.3 FRUTCO may claim reasonable price adjustments in the event of extraordinary market distortions in procurement costs.
6. Payment Terms
6.1 FRUTCO’s invoices are due according to the mutually agreed payment terms in writing, in the agreed currency to the agreed bank account. Deductions for bank charges, discounts etc. and currency differences resulting from non-compliance with this agreement will be charged subsequently.
6.2 The payment obligation is fulfilled when the amount due is credited to the account stated in the invoice and is freely available to FRUTCO.
6.3 It is inadmissible to withhold, offset or reduce payments due to complaints, defects or counterclaims not recognized by FRUTCO.
6.4 If the Customer is in default with a payment or if FRUTCO must seriously fear that it will not receive payments from the Customer in full or on time, FRUTCO is entitled to:
- (1) withhold its own performance and deliver goods to the Customer only against payment upon delivery and to deposit goods at the Customer’s expense; upon deposit, the contractually agreed price for the deposited goods becomes immediately due for payment.
- (2) demand advance payments for all goods placed in stock with a view to contract fulfillment, corresponding to the value of the goods in question. Such advance payments become immediately due for payment.
- (3) with regard to contracts or parts of contracts not yet fulfilled by it, set a grace period of 10 days for the provision of security (unconditional bank guarantee from a recognized banking institution) in the value of the contracts or parts of contracts not yet fulfilled. If the security is not provided within the set period, FRUTCO is entitled with regard to contracts or parts of contracts not yet fulfilled by it to:
(i) maintain the contract and decide whether to fulfill itself or waive actual performance and demand damages (positive contract interest), or
(ii) withdraw from the contract and demand damages (negative contract interest)
6.5 If the Customer does not meet the agreed payment deadlines, they must pay default interest without reminder from the 30th day after the invoice date, which is 2% above the statutory default interest rate. In addition, FRUTCO is entitled to claim a reminder fee of CHF 50.00 (plus VAT) per reminder letter. The compensation for further damages remains reserved.
7. Delivery Period
7.1 The delivery period begins and ends according to the time frame agreed in writing in the contract.
7.2 If a specific date is agreed instead of a delivery period, this is equivalent to the last day of a delivery period when applying the following provisions.
7.3 The obligation to meet the delivery period requires the Customer to fulfill its contractual obligations.
7.4 The delivery period is extended appropriately:
- (1) if FRUTCO does not receive the information it requires to fulfill the contract in time, or by mutual agreement
- (2) if obstacles occur which FRUTCO cannot avert despite exercising due diligence, regardless of whether they arise at FRUTCO, at the Customer or for other reasons (e.g. epidemics, mobilizations, war, riots, significant operational disruptions, accidents, labor disputes, late or faulty delivery of necessary raw materials, semi-finished or finished products, rejection of important components, official measures, natural events).
7.5 The Customer has no claim for damages or dissolution of the contract due to a delay in delivery.
7.6 For framework agreements and other contracts with successive deliveries, call-offs must be made within a maximum of 12 months from the conclusion of the contract; explicitly agreed different maximum call-off periods remain reserved. If the goods are not called off within the 12-month period or the explicitly agreed different maximum period, FRUTCO is entitled to deliver the goods to the Customer or deposit them at its own discretion and in both cases demand payment for the goods upon delivery.
8. Transfer of Benefits and Risk
8.1 Benefits and risk pass to the Customer at the latest upon dispatch of the goods at the point of departure. This also applies if delivery is made carriage paid, CIF, CFR, FOB or under similar clauses, or if transport is organized and managed by FRUTCO. The transfer of benefits and risk occurs independently of the time of transfer of ownership.
8.2 If dispatch is delayed at the Customer’s request or for other reasons for which FRUTCO is not responsible, the risk passes to the Customer at the time originally intended for dispatch. From this time on, FRUTCO is free to store or deposit the goods at the Customer’s account and risk.
9. Dispatch, Transport and Insurance
9.1 Special requests regarding dispatch, transport and insurance must be communicated to FRUTCO in good time. Transport is at the Customer’s account and risk.
9.2 Complaints in connection with dispatch or transport must be directed by the Customer to the last carrier immediately upon receipt of deliveries or freight documents.
9.3 Unless otherwise agreed, insurance against damage of any kind is the Customer’s responsibility.
10. Inspection and Acceptance of Deliveries and Services
10.1 The Customer must inspect deliveries within 2 days of receipt and immediately notify FRUTCO in writing of any defects. If they fail to do so, the deliveries are deemed approved.
10.2 Acceptance is also deemed to have taken place if:
- (1) an agreed acceptance inspection cannot be carried out on the scheduled date for reasons for which FRUTCO is not responsible;
- (2) the Customer fails to accept or refuses acceptance without being entitled to do so;
- (3) the Customer uses deliveries from FRUTCO.
10.3 Due to defects in the goods, the Customer has exclusively the rights expressly mentioned in Section 11.
11. Warranty, Liability for Defects
11.1 FRUTCO undertakes, during the warranty period upon written request by the Customer, to either replace the defective goods or refund the purchase price paid for the defective goods, at its own choice. In the case of minor defects, the Customer is only entitled to an appropriate reduction in the purchase price (reduction).
11.2 The warranty period ends at the time when the goods would spoil under normal circumstances anyway (best before date).
11.3 Warranted properties are only those expressly designated as such in the order confirmation or in the specifications.
11.4 Excluded from the warranty are damages arising from transport, unsuitable storage, environmental influences, natural spoilage or other reasons for which FRUTCO is not responsible.
11.5 For claims by the Customer due to defective advice and the like or due to violation of any ancillary obligations, FRUTCO is only liable in case of unlawful intent or gross negligence.
12. Exclusion of Further Liabilities of FRUTCO
12.1 All cases of breach of contract and their legal consequences as well as all claims by the Customer, regardless of the legal basis on which they are made, are conclusively regulated in these conditions. In particular, all claims not expressly mentioned for damages, reduction, cancellation of the contract or withdrawal from the contract are excluded.
12.2 In no case does the Customer have claims for compensation for damages that did not occur to the delivered goods themselves, such as production loss, loss of use, loss of orders, lost profits and other indirect or direct damages.
12.3 This limitation of liability does not apply to unlawful intent or gross negligence by FRUTCO, but it does apply to unlawful intent or gross negligence by auxiliary persons.
13. Right of Recourse
If persons are injured or third-party property is damaged by actions or omissions of the Customer or their auxiliary persons, and FRUTCO is held liable for this reason, FRUTCO has a right of recourse against the Customer.
14. General Purchasing Conditions
14.1 Acceptance
The Supplier acknowledges and agrees that these General Purchasing Conditions, together with all applicable orders, releases, requirements, work orders, shipping instructions, specifications and other documents, whether in written form or not, form part of and constitute part of this Agreement with respect to the goods and/or services to be provided by the Supplier under this Agreement. The Supplier further confirms that they have read and understood the General Purchasing Conditions.
14.2 Supplementary Amendment of Orders
If FRUTCO determines at its discretion that a material change has occurred with respect to the demand of FRUTCO’s customers or other market or economic conditions, and that these changes have an impact on the terms of this Agreement, FRUTCO is entitled to change the quantities and frequency of scheduled deliveries of the goods or temporarily suspend scheduled deliveries, without the Supplier having any claim to a price adjustment or any other change to this Agreement.
14.3 Purchasing and Delivery Conditions
14.3.1 Order
The Supplier is obliged to deliver all goods and services described in detail in the “Specific Definitions and Prices” section of this Agreement according to the applicable orders in which deliveries are defined and planned. Acceptance of the order takes place within 72 hours by sending a confirmation to the respective issuer of the order.
14.3.2 Delivery Conditions
Deliveries are made in the quantities, on the dates and at the times specified in the formal instructions from FRUTCO (Order) under this contract and in the order lead time requirements defined in the specific definitions and prices of this Agreement.
Premium Deliveries: If the Seller does not have the goods ready for delivery in time and at the place to meet FRUTCO’s delivery schedules with the transport method originally specified by FRUTCO, and FRUTCO therefore requires the Seller to transport the goods by a faster method, the Supplier bears all costs for this premium transport and is responsible for it.
14.3.3 Shipping Documents
The Seller ensures that FRUTCO receives all necessary documents in time so that FRUTCO can receive the goods according to the requirements of the contract. The Seller is responsible for obtaining any export permits required with respect to the goods under the contract.
14.3.4 Transfer of Risk
Unless expressly stated in the contract (including INCOTERMS ICC 2010), the Supplier bears all risk of loss, theft, damage or destruction of the goods until physical delivery of the goods, unless the Supplier and FRUTCO have explicitly agreed otherwise in writing.
14.4 Packaging and Labeling of Goods
The Seller must package the goods for delivery with the best materials suitable to protect the goods during transport. They must handle them with due care according to the best food and safety standards. The goods must be properly packaged and labeled in accordance with the instructions specified in the contract. If instructions are missing, then packaging and labeling must be as customary in the industry and in accordance with all applicable legal requirements or specifications of the carriers and manufacturers of the goods. The packaging must in particular state the contract or order number and all other identification information provided by the Buyer, as well as all other information customary for the goods in question. During transport, they ensure the safe and proper transport of the goods.
14.5 Conformity and Quality of Goods
The goods must comply with the applicable regulations of the country/countries in which the goods are to be used or sold. The Seller guarantees that the goods meet all qualities and specifications according to the technical data sheet provided by the Buyer. Upon receipt of the goods, the Buyer or a representative appointed by them conducts an inspection of the goods. This inspection of the goods takes place at the delivery location of the goods or at the Seller’s facilities, provided this is agreed and/or expressly stated in the Special Contract Conditions. Under no circumstances is the Buyer obliged to accept goods that do not comply with the specifications, quality or requirements of the contract. FRUTCO may make acceptance of the goods conditional on FRUTCO having had the opportunity to inspect the goods after delivery of the goods according to the requirements of the contract. The Seller participates, where applicable, in the Buyer’s quality and development programs for suppliers and complies with all quality requirements and procedures that the Buyer establishes from time to time. The Seller allows the Buyer and its representatives and advisors to enter the Seller’s facilities at reasonable times to inspect their facilities and all goods relating to this contract.
14.6 Non-conformity and Rejection of Goods
The rejection of goods is communicated to the Seller by FRUTCO within the framework of the Buyer’s non-conformity report. If the goods are defective or otherwise do not comply with the specifications or requirements of this Agreement, FRUTCO is entitled to reject the goods or refuse acceptance of the goods at its discretion. In this case, the Seller undertakes to immediately replace the goods with goods that comply with FRUTCO specifications. In this case, the Seller must pay all costs and expenses associated with
a) the return of the goods
b) the delivery of any replacement goods to FRUTCO, whereby in the event that the Buyer itself purchases goods to replace the rejected goods and must procure quantities corresponding to the rejected quantities elsewhere on the market, the difference between the market prices applies. The price at this time and the price specified in the Agreement represent costs and expenses to be borne by the Seller and to be reimbursed to the Buyer according to these provisions
c) the preservation and cold storage of the goods at the Seller’s expense
d) the charge of ancillary costs in connection with the rejection of said goods by the Buyer. Due to the quantity of unconfirmed goods as well as this number of events and occurrences, FRUTCO may at its discretion reduce, revoke or cancel the outstanding quantities of goods ordered under this contract
14.7 Payment
The manner chosen by the Buyer for billing the price in connection with the purchased goods, which corresponds to the invoice issued by the Seller, is specified in the Special Contract Conditions. Unless otherwise specified in the Special Contract Conditions and to the extent permitted by applicable law, invoices are due within 90 (ninety) days from the invoice date without deduction by bank transfer to the Seller’s invoice address to the bank account named by them.
14.8 Transfer of Benefits and Risk
The goods and consequently also the open risks associated with the goods pass from the Seller to the Buyer as soon as they have been accepted by FRUTCO according to the requirements of this Agreement. Should payment for the goods occur before acceptance by the Buyer or before expiry of the shelf life of the goods, this payment cannot be considered as a transfer of ownership. Such payment will be refunded to the Buyer in the event of non-acceptance of the goods.
14.9 Warranties
Without limitation of all other warranties mentioned in or arising from the Agreement, the Seller warrants and ensures that
a) the goods, including all their packaging, comply with the specifications of the Agreement and are suitable for the purposes for which these goods are normally intended. The Seller guarantees a uniform quality, free from defects of any kind
b) the goods comply with all legal requirements of the applicable laws in the countries where the goods are manufactured and where they are to be used, manufactured or sold
c) they provide the Buyer with all certificates, reports and other documents in connection with the goods required by a final country of destination, either the Buyer’s country or another country where the goods are to be manufactured or used, manufactured or sold. It is assumed that FRUTCO will do its best for this purpose to enable the Seller to identify these countries, while the Seller will fulfill its due diligence obligations to verify the legal requirements of each of these countries
d) should the Seller not be the original supplier and/or manufacturer of the goods, they grant the Buyer in addition to all other warranties required under this Agreement the benefits of all supplier and/or manufacturer warranties
e) the goods comply with the quality, quantity and description required in the contract
f) the shelf life corresponds to the nature and specifications of the goods
14.10 Default
The contracting parties acknowledge that the Supplier’s default in compliance with the delivery conditions or in compliance with the service level towards FRUTCO may result in a significant loss in its operation. Therefore, the parties agree as follows:
If the Supplier fails to meet the agreed delivery date stated in the order, FRUTCO has the right to invoice the Supplier for
(i) 15% of the value of the order or
(ii) the higher costs that FRUTCO has incurred for obtaining an alternative source of supply compared to the price agreed in the order
14.11 Confidentiality
The Buyer and the Seller, their representatives, employees, officers, subcontractors and servants are obliged to treat the provided documents, data or other information confidentially and not to disclose them to third parties without the written consent of the other contracting party, whether directly or indirectly in any manner, regardless of whether this information was provided before, during or after conclusion or termination of the Agreement. Notwithstanding the foregoing, the Seller may provide its subcontractors with such documents, data and other information it receives from FRUTCO to the extent necessary for the subcontractor to carry out its work under the contract. In this case, the Seller must obtain from this subcontractor a confidentiality obligation corresponding to that of the Seller. FRUTCO may not use these documents, data or other information received from the Seller for purposes unrelated to the contract. Likewise, the Seller may not use these documents, data and other information received from the Buyer for purposes other than contract fulfillment. A party’s obligation under the two preceding paragraphs does not apply to information that
a) was demonstrably now or later without fault in the possession of this party at the time of disclosure
b) was not previously received directly or indirectly from the other party
c) is lawfully made accessible to this party in another manner by a third party who is not subject to any confidentiality obligation.
The provisions of this article also apply after conclusion or termination of the Agreement, for whatever reason.
15. Languages
In the event of a conflict between the German version of this Agreement and a translation into another language, the German version shall prevail.
16. Applicable Law and Jurisdiction
16.1 The legal relationship between FRUTCO and the Customer or the Supplier is subject to substantive Swiss law. The applicability of the Vienna Sales Convention (United Nations Convention on Contracts for the International Sale of Goods, CISG) is expressly excluded.
16.2 The exclusive place of jurisdiction for all disputes between FRUTCO and the Customer or the Supplier is the registered office of FRUTCO (Baden / Switzerland). In addition, FRUTCO is entitled to sue the Customer or the Supplier at their registered office and at the places of jurisdiction provided for by law.