GENERAL TERMS AND CONDITIONS OF SALE AND DELIVERY FOR FLOWER BULBS
Royal Trade Association for Nursery and Bulb Products (ANTHOS)
1. Applicability of these conditions
1.1. These conditions apply exclusively to agreements in which one of the parties is a member of Anthos at the time of concluding the agreement, which, within the framework of these general terms and conditions, are also deemed to include other companies that are directly or indirectly connected to an enterprise that is a member of Anthos.
1.2. If an agreement refers to these conditions, and only non-members are involved in this agreement, the conditions mentioned below shall not apply.
1.3. These conditions apply to every offer and every agreement between seller and a buyer.
1.4. The applicability of the buyer’s general terms and conditions is expressly rejected.
1.5. Deviations from these conditions are only legally valid if they have been expressly agreed upon in writing between buyer and seller.
1.6. If these general terms and conditions have also been drawn up in a language other than Dutch, in the event of any difference or contradiction between the Dutch and the other language, the Dutch text shall be binding.
2. Offers and conclusion of agreement
2.1. All offers and quotations made by the seller are without obligation.
2.2. An agreement is concluded after it has been confirmed in writing by the seller.
2.3. Any additional agreements or modifications made later, as well as verbal promises made by the seller’s personnel or on his behalf by his agents or other representatives working for him, are only legally valid after they have been confirmed in writing by the seller.
3. Prices
3.1. All prices for the goods and services are set in Euros, excluding VAT, and are based on Ex Works, Netherlands (EXW, Incoterms 2010).
3.2. If, after the order confirmation but prior to delivery of the products, one or more of the cost-determining factors change, the seller reserves the right to adjust the agreed prices accordingly.
3.3. The costs relating to packaging and inspection by or on behalf of the Netherlands Food and Consumer Product Safety Authority (NVWA) shall be borne by the buyer. All levies and/or taxes that are due or will become due, whether directly or indirectly, as a result of the agreement concluded between the seller and the buyer, shall be exclusively and fully borne by the buyer.
4. Payment
4.1. Unless the parties have agreed otherwise in writing, payment for the goods sold by the seller must be made within 30 days of the invoice date in the agreed currency.
4.2. The date of payment shall be the date on which the seller receives the payment. In the case of payment by bank transfer, the date of payment shall be the value date of the crediting of the seller’s bank account.
4.3. The buyer is not entitled to any deduction, suspension, or payment discount, and the offsetting of claims or costs is also expressly prohibited. 4.4. In the event of the payment term being exceeded, the seller is entitled to charge statutory interest from the due date, while all judicial and extrajudicial costs of collection shall also be for the account of the buyer.
4.5. If an agreement is executed in installments, the seller is entitled to demand payment for the partial deliveries before making the remaining partial deliveries.
4.6. The seller is entitled, at or after entering into the agreement, and before (further) performing, to demand security from the buyer that both payment and other obligations arising from the concluded agreement are fulfilled. Refusal by the buyer to provide the requested security entitles the seller to suspend his obligations and ultimately entitles him to dissolve the agreement in whole or in part without notice of default or judicial intervention, without prejudice to his right to compensation for any damage suffered by him.
4.7. If the agreement is validly dissolved in part or partially suspended, the remaining part of the agreement shall remain in full force and effect, which means, among other things, that the buyer must pay the purchase price of the delivered goods.
5. Delivery
5.1. Unless otherwise agreed in writing, all deliveries shall take place Ex Works, Netherlands (EXW, Incoterms 2010).
5.2. Although the stated delivery time will be observed as much as possible, this delivery time is approximate only and can never be considered a firm deadline. The seller shall not be in default regarding the delivery time until he has been given written notice of default by the buyer, who has thereby given him the opportunity to still deliver and sell within a reasonable period.has failed to comply with this.
5.3. The agreed delivery period commences as soon as the agreement has been concluded.
5.4. The Seller is not liable for damages resulting from late delivery if and to the extent that late delivery is due to circumstances that are not for the account and risk of the Seller, including the failure of the Seller’s suppliers to perform.
5.5. Failure by the Buyer to fulfill any payment obligation (on time) suspends the Seller’s delivery obligation.
6. Force Majeure
In the event of force majeure – which includes, among other things, crop failure, viruses, natural disasters, strikes, fires, import and export restrictions – and other circumstances whereby performance of the agreement cannot be demanded from the seller, or cannot be demanded in a timely manner, the seller has the right, at its option, without judicial intervention and without being liable for any compensation, by simple written notice, either to dissolve the agreement in whole or in part or to suspend the execution of this agreement until the force majeure situation has ended.
7. Complaints
7.1. The buyer is obliged to inspect the goods upon delivery for visible and/or immediately observable defects. All defects that can be detected by means of normal sensory perception or a simple sample are deemed to exist as such. Furthermore, the buyer is obliged to check whether the delivered goods are also in accordance with the order in other respects. By failing to comply with the duty of inspection, the buyer forfeits all potential claims against the seller.
7.2. If the delivered goods deviate by less than 10% in number, quantity, and weight from what has been agreed, the buyer shall nevertheless be obliged to accept the delivered goods.
7.3. Complaints regarding the quality and quantity of the delivered goods must be submitted in writing no later than seven calendar days after delivery. Defects that can only be discovered at a later stage (non-visible defects) must be reported to the seller in writing immediately after discovery. As soon as these time limits have been exceeded, the buyer shall be deemed to have approved the delivered goods and complaints will no longer be processed.
7.4. The complaint must contain a description of the defect, and the seller must be given the opportunity to investigate the complaint upon first request.
The buyer must allow the seller to have an inspection of the goods in question carried out by an expert or an independent body. If the expert declares the complaint to be justified, the costs of the inspection shall be borne by the seller. If the claim is declared unfounded, the costs shall be borne by the buyer. 7.5 If the buyer has reported a complaint to the seller in a timely manner and the seller has acknowledged the complaint, the seller is, at his option, obliged solely to deliver the missing items, replace the delivered goods, or refund a proportionate part of the purchase price.
7.6 The submission of a complaint does not suspend the buyer’s payment obligation, unless the seller expressly agrees to such suspension in writing.
7.7 The return of the goods is at the buyer’s expense and risk and may only take place after prior written consent from the seller.
8. Liability
8.1. The seller shall never be liable for the flowering result of the delivered goods. It is at all times the responsibility of the buyer to assess whether the conditions are suitable for the goods, including but not limited to climatic conditions.
8.2. In the event of an attributable failure to perform the agreement, the seller’s liability is at all times limited to a maximum amount equal to the net invoice value of the delivered goods or the part of the net invoice value to which the claim for compensation is directly or indirectly connected.
8.3 Except for statutory liability based on mandatory legal provisions and except in cases of intent or gross negligence, any liability of the seller for any other form of damage is excluded, including any direct or indirect damage, consequential damage, or damage due to lost profits.
8.4 The buyer indemnifies the seller against claims from third parties for compensation for damages for which the seller is not liable pursuant to these terms and conditions.
8.5. If latent infections are present in the delivered products, this shall be considered a non-attributable failure on the part of the seller, unless the buyer demonstrates a) that there was intent or gross negligence on the part of the seller which caused these latent infections or b) that the seller was aware of these latent infections…. prior to the purchase but which the buyer has nevertheless not informed about. The amount of the seller’s liability shall never exceed the net invoice value.
9. Cancellation
9.1. The seller has the right to cancel an order if, at the time of delivery, the buyer has not yet fulfilled his previous payment obligations towards the seller or towards other creditors. The seller may also exercise this right if the information regarding the buyer’s creditworthiness is considered insufficient by the seller. The buyer cannot derive any rights from such cancellations and the seller can never be held liable by him.
9.2. If the buyer cancels the agreement in whole or in part, for whatever reason, the seller is only obliged to accept this if the goods have not yet been handed over to the carrier for shipment and on the condition that the purchaser pays compensation equal to at least 50% of the invoice value of the cancelled goods. In that case, the seller is also entitled to charge all costs incurred up to that point. 9.3. The Buyer is obliged to take delivery of the purchased goods at the moment they are made available to him. If the Buyer refuses to do so, the Seller is entitled to sell these goods elsewhere, and the Buyer is liable for the price difference as well as for all other costs arising therefrom for the Seller.
10. Retention of Title
10.1. Ownership of the goods delivered by the Seller shall not pass to the Buyer until full payment of all amounts invoiced by the Seller, including any interest, penalties, and costs, as well as all claims due to failure to fulfill the Buyer’s obligations arising from agreements with the Seller.
10.2 The Seller is entitled to immediately repossess the sold goods if the Buyer defaults in any way or fails to meet his payment obligation. In that case, the Buyer is obliged to grant the Seller access for this purpose to his premises and buildings.
10.3 The Buyer must store the goods subject to retention of title separately from the other goods, in order to be able to continue to distinguish the goods belonging to the Seller. 10.4 As long as the delivered goods are subject to a retention of title, the Buyer may not alienate, encumber, pledge, or otherwise place them in the possession of third parties outside of its normal course of business. However, the Buyer is not permitted to alienate the goods in the context of its normal course of business at the moment the Buyer has requested a suspension of payments or has been declared bankrupt.
11. Sanctions
11.1 The Buyer guarantees that it complies and will continue to comply with all obligations and restrictions arising from all applicable sanctions regulations of the United Nations, the United States of America, the European Union, the Netherlands, and of any other country that is or may become relevant to the execution of the concluded agreement (“Sanctions Legislation”).
11.2 In particular, the Buyer guarantees that it will not directly or indirectly sell, transfer, deliver, or otherwise make available the purchased goods to (legal) persons, entities, groups, or (government) organizations that are sanctioned under the Sanctions Legislation. 11.3 The Buyer shall ensure that all obligations under this article are imposed equally on each party to whom he resells or delivers goods that he has procured from the Seller.
11.4 If the Buyer fails to comply with the obligations arising for him under this article, or fails to do so in a timely or proper manner, the Seller shall have the right, without notice of default, to suspend or dissolve the agreement with immediate effect, without any obligation to pay compensation on the part of the Seller and with full liability for damages on the part of the Buyer towards the Seller, all at the discretion of the Seller.
12. Anti-Corruption
12.1 The Buyer shall at all times comply with all obligations and restrictions arising from all applicable anti-corruption regulations of the United States of America, the United Kingdom, the Netherlands, and of any other country that is or may become relevant to the execution of the concluded agreement (“Anti-Corruption Legislation”). 12.2 Any offer to and any acceptance by employees or members of the management of the Buyer of money, gifts, presents, travel, entertainment or other compensation relating to the agreement or seller and which is intended to, or can be construed as, inducement to act in a certain way is strictly prohibited.
12.3 The Buyer shall not directly or indirectly offer, promise or give anything to any political party, campaign, government agency, or official body.to or to (employees of) public institutions, state-owned enterprises, organizations, international institutions with the aim of obtaining or retaining business or any other improper benefit in connection with the agreement or seller.
12.4 In connection with the agreement or seller, Buyer shall not offer, promise, give or accept anything regarding a business relationship, unless there is a fair basis for doing so and it is reasonable in the context of the day-to-day course of business and otherwise complies with local legislation.
12.5 Buyer shall immediately notify Seller if it learns of any situation in the performance of the agreement that may be in violation of Anti-Corruption Legislation.
12.6 If Buyer fails to comply with the obligations arising for him from this article, or fails to do so in a timely or proper manner, Seller shall have the right to suspend or dissolve the agreement with immediate effect without notice of default, without any obligation to pay compensation on the part of Seller and with full liability for damages on the part of Buyer towards Seller, all at the discretion of Seller.
13. Dissolution and Suspension
13.1 In the event that the Buyer fails to fulfill, fails to fulfill in a timely manner, or fails to properly fulfill the obligations arising for him from the concluded agreement, or if there is a well-founded fear thereof, as well as in the event of an application for a moratorium, bankruptcy, or liquidation of the Buyer’s business, and also in the event of the death or dissolution or termination of the Buyer, if the latter is a company, or when a change occurs in his form of enterprise or in the management of the company or in the contribution of the company’s activities, the Seller has the right, without notice of default and without judicial intervention, to suspend the agreement for a reasonable period or to dissolve the agreement without any obligation to pay compensation.
13.2 The Seller’s claim regarding the part of the agreement already performed, as well as the damages resulting from the suspension or dissolution, including lost profits, is immediately due and payable.
14. Intellectual Property Rights
14.1. Seller reserves all rights that Seller has in the field of intellectual property in connection with goods supplied by Seller.
14.2 In those cases where it appears from the catalogue used by Seller, or from the agreement concluded by the parties, that a variety enjoys plant breeders’ rights protection – which is indicated by the designation (R) after the name of the variety concerned – Buyer is bound by all obligations related to that right. Violation of this provision results in Buyer being liable for all damage resulting therefrom for Seller and third parties.
15. Conflict with statutory provisions
Should any provision of these General Terms and Conditions of Sale and Delivery be inapplicable or contrary to public order or the law, only the provision in question shall be considered null and void, but otherwise the conditions shall remain in full force.
Seller reserves the right to amend the disputed provision into a legally valid one.
16. Competent court / applicable law
16.1 These terms and conditions, as well as all offers made by the seller and agreements between the buyer and the seller, are exclusively governed by Dutch law. The application of the Vienna Sales Convention is expressly excluded.
16.2 All disputes that may arise between the seller and the buyer, including those deemed as such by only one of the parties, shall be exclusively adjudicated by the court competent in the area where the seller is established, without prejudice to the seller’s right to submit the dispute, if desired, to the court competent in the buyer’s place of business.
Version Oct 2020