1. Applicability
1.1 These terms and conditions apply to all offers, quotations, orders and agreements in respect of which Van den Bos Flowerbulbs BV or Van den Bos Freesia BV acts as party.
1.2 The applicability of general conditions of the buyer is expressly rejected by the seller.
1.3 Departures from the present conditions will only be valid if expressly agreed to in writing by the seller.
1.4 Insofar as these general terms and conditions are also drawn up in a language other than Dutch, in the event of any conflict the Dutch text shall always prevail.
2. Offers and conclusion of agreement
2.1 All offers and prices stated by the seller are free of obligations.
2.2 An agreement shall only come into effect once the seller has confirmed the order.
2.3 Any supplementary arrangements or amendments agreed on at a later stage, as well as any verbal promises made by the seller's personnel or on behalf of the seller by agents or other parties working for the seller, will only be binding for the seller from the moment that the latter confirms them.
3. Prices
3.1 Unless the parties agreed otherwise in writing, all product prices are stated in Euro, exclusive of VAT and are based on “Free on Board” (Rotterdam), Netherlands (FOB, Incoterms 2010) for transportation over sea or “Free Carrier” (Honselersdijk), Netherlands (FCA, Incoterms 2010) for road transportation.
4. Payment
4.1 Unless otherwise agreed in writing, payment for goods sold by the seller that are sent by air must be made within 30 days of the invoice date and, in the case of goods sent as sea freight, within 60 days of the invoice date in the agreed currency.
4.2 The value date on which the seller receives payment shall be deemed to constitute the date of payment. Where payment is made by means of a giro or bank transfer, the date on which the seller’s account is credited shall be deemed to constitute the date of payment.
4.3 The buyer is not entitled to make any deduction, suspension or reduced payment and all calls for settlement are explicitly excluded. In the event of late payment, the seller will be entitled to charge the statutory interest for business transactions as of the due date, and also to charge any legal and extrajudicial costs incurred in collecting the amounts owed; the extrajudicial costs owed will never be less than 15% of the sum to be collected.
4.4 In case a delivery is effected in parts, the seller shall be entitled to demand payment for each partial delivery before proceeding with any other.
4.5 Upon or after entering into the agreement and before its implementation, the seller will be entitled to demand a guarantee from the buyer that both the payment obligations and any other obligations arising from this agreement will be fulfilled. Refusal by the buyer to provide the required security gives the seller the right to suspend its obligations and ultimately, without any notice of default or legal intervention, the right to dissolve the contract wholly or partially, without prejudice to his right to compensation for any damages suffered by him.
5. Delivery
5.1 All deliveries shall be ex works, The Netherlands (EXW, Incoterms 2010), unless otherwise agreed in writing.
5.2 Although the stated time of delivery will always be taken into account as far as possible, this delivery time is approximately indicated and can never be considered a fatal date. The seller shall not be in default in respect of such delivery time until the buyer notifies it in writing that it is in default, stipulating a reasonable period of time within which the seller has the opportunity to effect delivery, and the latter still fails to do so.
5.3 The agreed delivery time shall commence as soon as the seller has confirmed the order.
5.4 The seller shall not be liable for any harm due to late delivery if and insofar as this is attributable to circumstances beyond seller’s control and sphere of risk, which is deemed to include late or non-compliance on the part of its suppliers.
5.5 The buyer’s failure to comply with his duty to effect payment (or to do so on time) shall have the effect of suspending seller’s duty to deliver.
6. Force majeure
6.1 In a case of force majeure – for example in the event of crop failure, viruses, natural disaster, labour strike, fire, or import/export problems – or in the case of other circumstances that make it impossible to demand the seller's fulfilment or timely fulfilment of the obligations arising from this agreement, the seller will be entitled, without the need for legal intervention and without being obliged to pay any compensation, to either cancel the agreement wholly or partially by written notice or to suspend it until the force majeure has ended.
6.2 Where the seller has already executed part of an agreement, the buyer shall pay the purchase price for any products that have been delivered.
7. Complaints
7.1 The buyer is obliged to check the products upon delivery for any visible and/or immediately observable defects. Failure to fulfil this obligation means forfeiture of any claims the buyer may have.
7.2 Complaints regarding the quality or quantity must be submitted in writing within seven calendar days after delivery. Non-visible defects must be reported immediately upon discovery. After these periods, complaints will no longer be considered.
7.3 The complaint must describe the flaw, and the seller must be given the opportunity to investigate. The buyer shall allow examination by an expert or inspection service. If well-founded, investigation costs are for the seller; if unfounded, for the buyer.
7.4 If the complaint is acknowledged, the seller shall only be obliged to deliver what is missing, replace the products, or refund part of the purchase price, at its discretion.
7.5 A complaint shall not suspend the buyer’s payment obligation unless expressly agreed.
7.6 Products can only be returned at the buyer’s risk and cost, and only after prior written permission.
8. Liability
8.1 It remains the buyer’s responsibility to assess if the circumstances are suitable for the products.
8.2 In case of a shortcoming attributable to the seller, liability is limited to the net invoice value of the products concerned.
8.3 Except in the case of mandatory legal liability, deliberate act or gross negligence, any liability for direct, indirect or consequential damage, including loss of profit, is excluded.
8.4 The buyer shall indemnify the seller against all third-party claims for compensation for which the seller is not liable under these terms.
9. Cancellation
9.1 The seller may cancel an order if the buyer has failed to comply with previous payment obligations or if its credit rating is insufficient. The buyer cannot derive any rights from such cancellations.
9.2 The seller will only accept the buyer’s cancellation if the goods have not yet been dispatched, and only if the buyer compensates at least 25% of the invoice value plus any costs incurred.
9.3 The buyer must accept the products when made available. If refused, the seller may sell them elsewhere and charge the buyer for the price difference and costs, including storage.
10. Retention of title
10.1 Ownership of the goods supplied does not pass to the buyer until full payment of all sums due, including interest and costs.
10.2 The seller may immediately reclaim goods if the buyer defaults on payment. The buyer must grant access to premises for this purpose.
10.3 The buyer must store goods subject to retention of title separately from others.
10.4 While under retention of title, the buyer may not sell, pledge or encumber the goods except in normal business operations. Sales are not permitted if the buyer has applied for suspension of payments or bankruptcy.
11. Suspension and dissolution
11.1 If the buyer fails to perform obligations, faces bankruptcy, liquidation, death, or other risk situations, the seller may suspend or annul the agreement without being liable for compensation.
11.2 The seller’s claim for performed parts and damages (including lost profit) becomes immediately due.
12. Intellectual property rights
12.1 The seller reserves all intellectual property rights relating to supplied products.
12.2 Buyer agrees not to propagate or sell R-marked varieties, which may be used for cut-flower purposes only. Any mutation discovered must be reported immediately.
13. Severance
If any provision is invalid or conflicts with law, only that provision shall be deemed unwritten, and the rest remains in force. The seller may amend the provision to make it valid.
14. Jurisdiction and forum
14.1 Any disputes will be brought before the competent court in the district where the seller is registered, without affecting the seller’s right to choose another competent court.
14.2 All offers and agreements between buyer and seller are governed exclusively by Dutch law.
Version 2: November 2012