GENERAL TERMS OF DELIVERY AND PAYMENT OF BEEKENKAMP VERPAKKINGEN B.V.
Of the private company with limited liability Beekenkamp Verpakkingen B.V. with its registered office in Maasdijk, municipality of Westland, listed in the Trade Register of the Chamber of Commerce and Industry in The Hague under number 27221212.
I APPLICABILITY GENERAL TERMS AND CONDITIONS
These conditions will apply to all offers, quotations, agreements and deliveries entered into by Beekenkamp Verpakkingen B.V.
Offers, irrespective of their shape or form, are without engagement until the order resulting from these has
become binding in the way as described in clause 7.
We will not be liable for damage caused by inaccuracies in advice provided and data regarding products to be delivered, except in the event of gross negligence and intention.
All drawings, sketches, schedules, samples, models, calculations, etcetera, made by us or manufactured on the instructions of us will remain our property and will remain so even after the agreement has been fully executed. The drawings etcetera cannot, neither in whole, nor in part be multiplied, shown or handed over to third parties, for any purpose whatsoever. The Client will be liable towards us for damage caused because of third parties being shown or
given drawings, etc. The drawings etc. are to be returned to us forthwith.
We will not be liable for inaccuracies in data, drawings, etc., or advice furnished to us by or on behalf of the Client in order to make use thereof in the execution of the agreement. We will not be obliged to test any of the data or documents received from or through the Client from third parties and may rely on the accuracy thereof. The Client will indemnify us, with regard to the above, against any claims of third parties arising from said inaccuracies.
All prices will apply, unless otherwise agreed on, to delivery ex warehouse or ex works, inclusive of packaging and exclusive of VAT. From the moment the goods leave the warehouse or the works, they will be at the expense and risk of the Client, who is required to insure himself adequately for that risk. We are free in the choice of efficient packaging and forwarding. The packaging material of our products meant for repeated use will remain our property. The Client
will keep this packaging material at our disposal. The Client will be liable for damage or loss thereof. If with regard to the agreement any charges due, such as freight costs, import and export duties stations, storage, surveillance, clearance charges, taxes or other levies, are introduced or raised after concluding the agreement, these will be borne by the Client, as well as the consequences of modified exchange rates, unless explicitly otherwise agreed on. As for goods, to deliver forward or on call and for goods we do not have in stock in whole or in part upop receipt of the order and which are quoted by us for the earliest possible delivery, we reserve the right, without further notice, to charge the prices and costs applicable at the time of delivery, regardless of any prior confirmation.
III ORDER AND OTHER AGREEMENTS
Any order will only be binding upon us insofar as it has been accepted by us in writing and without reservation. The
preceding equally applies to further agreements and to modifications to existing agreements.
If after acceptance of an order circumstances occur that affect the cost price, such as changes in prices of raw
materials, wages, rates, import duties, etcetera, we reserve the right to pass on those changes in price to its Client.
The Client will be informed about this.
If after acceptance of an order, modifications are stated by the Client, to which modification(s) we cannot agree, or on
account of which the order is cancelled in whole or in part, all costs already incurred as well as an amount for loss of
profits and loss on account of idle time will be borne by this Client.
In the event of cancellation of the order by the Client, Client will be obliged to compensate us for costs already
incurred, as well as an amount for loss of profits and loss on account of idle time. Cancellation will only be possible
after our written permission.
If there is reasonable suspicion that the financial position of the Client gives rise thereto, we are entitled to request
security of the Client for payment of the costs incurred and still to be incurred by us for this Client, by providing us with
a bank guarantee or by paying the agreed amount, eventually due.
We are entitled to suspend the execution of the activities until full security has been furnished. If within 3 months after
the request full security has not been furnished, the Client will be in default, without notice of default being required,
and the agreement may be dissolved by us without judicial intervention. The Client will be liable for all costs, damage,
loss of profits and any loss on account of idle time arising from the order and from the early termination.
We are free to call in third parties for the execution of an order.
IV PROVISIONS REGARDING THE PRODUCT:
We will be considered to have fulfilled our obligations with regard to the quantity of product to be supplied, when we
deliver the ordered quantity, or at maximum 10% more, or at maximum 10 % less than the ordered quantity.
Components to be made available to us by the Client or on behalf of the Client that are to be mounted to or to be
processed in the product to be manufactured by us, are to be delivered to our factory in time, in the required
quantities, free and carriage paid with a surcharge of 10%.
The Client is responsible for the components or other goods thus made available to us and for the proper applicability
thereof. We assume without any investigation that these components etcetera can be properly mounted or processed
right away in, on or to the commissioned product to be manufactured, barring other stipulations agreed on in writing.
If said components are not supplied in time, or cannot be processed by us and this results in a standstill of production,
the Client will be responsible for all losses sustained by us as a result of this standstill.
We will only take the product to be manufactured into production after the trial series furnished by us have been
approved by the Client and the Client has informed us in writing of such approval or we have confirmed such approval
With due observance of what has been stipulated elsewhere in these conditions, we will guarantee both the
soundness of the products supplied and the quality of the material used and/or built thereto in such a manner that in
the case of specified products their soundness will be defined by the specification.
Any defects in moulds and products produced by means of such moulds, of which the Client proves that they arose
within four months, counting from the date of dispatch, only or predominantly as a direct consequence of an
inaccuracy in the construction designed by us or as a result of an inadequate finish or use of poor material, will be
repaired by us. We are not obliged to compensate any further damage, be it direct or indirect, suffered by the Client or
by any third party.
With regard to the use of moulds as produced on our premises, a two year period of guarantee applies, or the
expressly agreed quantity of plastic products to be produced is applicable.
The guarantee given by us will not apply:
A. to defects that are the result of faulty materials and/or components that were furnished or prescribed by the Client.
B. to defects that are the result of improper use or negligence by/on the part of the Client, his staff or third parties.
C. to defects that are due to normal wear and tear, improper handling, overload or use of inappropriate operating
assets and corrosive chemicals.
D. in the event of alterations to the moulds, performed by third parties outside our instructions.
If we are required to come up with moulding tools, etc. to manufacture a mould, we will not commence the
manufacture until its Client has paid us an allowance in manufacturing costs agreed on thereto. Nor will we
commence modifications, improvements or repairs to moulds, etc. until the (if need be estimated) costs due thereto
have been paid. If a price for the activities has not been explicitly agreed on, the Client will on first demand pay us an
advance to the costs to be determined by us.
Moulds etc. manufactured in whole or in part in accordance with our instructions, for which the Client has paid the
agreed costs, will pass into the ownership of Client the moment these moulds are put to use by us for the
manufacture of the product. These moulds etc. will, however, be retained by us, if they are not used for production
and need only be returned to the Client on his written request after expiry of two years after delivery and/or payment
of the final order placed by the Client with us for products manufactured by means of these moulds etc. The Client is
obliged to collect the moulds, etc. with us within three years after delivery of the final order. If this is not done in time,
we will set a term in writing within which the goods can still be picked up. If the Client still fails to react in time, the
moulds etc. may be destroyed by us without us therefore being obliged to pay the Client any compensation. The
Client is obliged to pay the costs we have to incur on account of the destruction.
In those cases in which the Client supplies the moulds, etc., these will be returned at his request, only after all the
claims of us on the Client – for any account – have been paid.
We will not be responsible for loss or damage of moulds etc. except in the case of gross negligence or intention on
our part. We will not be responsible for gross negligence or intention of employees or subcontractors. If we are
responsible, the moulds, etc., will either be repaired or replaced, such at its discretion. We are not obliged to any
further obligation or payment of damages. We are not obliged to insure the moulds etc. in its possession against
damage by any cause whatsoever.
Insofar as we have indicated in the offer or order confirmation for what number of strokes or products a mould etc. can
normally be used, the mould etc. will no longer be considered suitable for further production after that number of
pieces, or after the production of that number of pieces. If such an indication to the offer or order confirmation was not
made, we will inform the Client as soon as it appears that a mould etc. is no longer suitable for an economically sound
production. In that case the Client will also be notified of the costs attaching to the repairs or the replacement.
When assessing an economically sound production, the progress of technology and the company’s adaptation to it
should also be considered, both with regard to volume and labour intensity. For as long as a mould etc. is still suitable
for production according to the above-mentioned standards and is kept with us, the maintenance costs of such a
mould etc. will be borne by us for a period of two years after its first use in the event of regular repeat orders of the
products to be manufactured with it.
Moulds etc. that are no longer suitable for production according to said standards need no longer be returned by us
and may be destroyed by us without us being obliged to any compensation towards the Client because of that.
Delivery times are only approximations. We are not responsible for the consequences of quoted delivery times being
exceeded. Exceeding the delivery time by any cause whatsoever will not entitle the Client to compensation, nor to
non-fulfilment of any relevant obligation resting on the Client.
Dissolution by the Client is possible under the conditions that apply to cancellation, as laid down in Clause 8.
We are entitled to deliver an order in its entirety or in successive parts. In the latter case we are entitled to separately
invoice every partial delivery to the Client and to demand payment thereto.
If and for as long as a partial consignment is not paid by the Client and/or the Client does not fulfill other obligations
arising from the relevant agreement or (an) earlier agreement(s), we are not obliged to deliver the next partial
consignment and we will be entitled to dissolve the agreement(s) insofar as it/they has/have not yet been carried out,
without judicial intervention and without any notice of default of the Client, while we retain the right to compensation
and without the Client being able to assert any right to compensation or otherwise.
VIII RETENTION OF TITLE AND RISK
We will remain the owner of the goods delivered to the Client, also after delivery, wherever these goods may be. The
Client is deemed to retain the goods for us for as long as this Client has not fully met its obligations to pay under any
agreement whatsoever to us.
The buyer has the right to process or sell on the products it purchased from us, provided this is done within the scope
of normal business operations.
In the event of non-payment of any claimable amount or in case the Client fails to meet any obligation towards us
under whatever agreement with us regarding the execution of work or the sale of goods, as well as in the case of the
Client’s filing for suspension of payment, bankruptcy or liquidation, we will be entitled to cancel the agreement or such
part thereof, that has not yet been carried out by us, as well as any other existing agreement(s) concluded with the
Client with immediate effect without judicial intervention being required by registered letter addressed to the Client.
The Client agrees now for than with the mentioned cancellation, in which case the Client will now for then grant us
access to its premises and we will be entitled to take back the goods that have not yet been paid, without prejudicing
our right to compensation of damage, costs, interest and lost profit, which may have been caused by all this. In any of
the above instances any claim we may have at the expense of the Client immediately becomes fully due and payable.
The Client is obliged to inform us forthwith of the fact that third parties are laying claim to goods on which rests our
retention of title under this clause.
IX FORCE MAJEURE
We reserve the right to cancel a concluded agreement in whole or in part, definitively or temporarily, or to execute it at
a later time and to extend it, if, as a result of force majeure within the meaning of art. 6:75 B.W. [Netherlands Civil
Code), we are incapable of fulfilment thereof, without being obliged to any compensation.
Should the extension of the delivery time exceed three months as a result of force majeure, we will be authorised to
cancel in whole or in part that part of the agreement that has not yet been carried out, without being obliged to any
compensation. In case of partial execution the Client will owe the costs incurred by us and/or a proportionate part of
the total price, against delivery of course of the goods manufactured by us.
We will not be liable for any direct damage whatsoever to the Client or to third parties because of suspension or
cancellation as a result of said force majeure.
X INDUSTRIAL PROPERTY RIGHTS
In case of manufacture by us of articles in accordance with drawings, samples, models or other modifications in the
broadest sense of the word, received from its Client or from third parties through the Client, the Client guarantees that
with the manufacture and/or delivery of such articles no patents or rights of use, trade models or any other rights of
third parties are affected and the Client will indemnify us against any claims arising therefrom.
If a third party objects to the manufacture and/or delivery under any alleged right as referred to above, we will be
entitled simply and only on those grounds, to cease the manufacture and/or delivery forthwith and to demand
compensation from its Client for costs incurred, without prejudicing our claims to any further compensation and
without us being obliged to any compensation to the Client.
We undertake to inform the Client forthwith in case third parties object to the manufacture and/or delivery of goods
meant for the Client. We reserve the intellectual property of the documents, drawings, samples, models or other
goods manufactured by us, also after delivery to the Client.
The Client will be responsible for any damage caused by infringement of our intellectual property rights, committed by
means of goods delivered to the Client by us. The Client undertakes to inform us immediately, as soon as the Client
becomes aware of any infringement of our rights.
The check for the quantity of the delivered products rests with the Client.
All complaints to that effect have to be in our possession within 24 hours after delivery, failing which the quantity as
stated in the consignment note, the delivery note or any other such document is deemed to have been accepted as
correct by the Client.
Immediately after delivery, but at any rate before the products are introduced to the production process, the Client
is required to check whether the delivered products show any material and/or manufacturing defects. We cannot
be held responsible in any way for any damage as the result of products with material or manufacturing defects
being introduced to the production process of the Client or their customer.
Any complaints about the incorrect execution of orders or about the quality of the delivered products have to be filed
by registered letter within eight days after delivery. In the event of defects within the meaning of Clause 13 the Client
is required within 48 hours after the Client believes to have found a defect, to inform us thereof by registered letter.
When the abovementioned periods have expired, the Client is deemed to have fully accepted the delivered goods.
Any complaints outside the aforementioned periods need therefore not be dealt with by us.
If complaints have been filed in time and after the products have been proven to show material defects or defects in
manufacture, we will at our own discretion either see to repairs free of charge or to a full or partial redelivery free of
charge. We are not obliged to any further obligations, especially not to compensation of damage.
We will not be liable for costs, damages and interests that might arise for the Client or for third parties as a direct or
indirect result of acts or omissions of persons employed by us or as a result of defects of the goods supplied by us to
We are only obliged to deliver in accordance with the specifications agreed on at the time the orders were placed. We will
not accept any liability for the applicability of the purposes of the delivered products deviating from the specifications
referred to by the Client or any other specifications whatsoever. Complaints will not be dealt with if the Client has in any
way failed to fulfill its obligations that have arisen till then towards us under any agreement. The Client will indemnify us
against all claims to compensate any damage of third parties arising from this agreement.
Payment is to be made within 30 days after date of invoice. In case this term is exceeded the Client will be in default
by operation of law, by the mere expiry of this term of payment without any notice of default being required. In that
case the execution of all orders accepted for the Client will be suspended until payment has been made in full, or until
a term to be set by us. If this term is exceeded, we will be entitled not to execute the orders referred to and to claim
From the moment payment should have been made, the Client owes an interest of 1,5 % of the invoice amount for
each month or part of a month by which the expiry date is exceeded.
Payments are to be made, either in cash at our offices or by bank transfer or giro transfer.
The Client will be in default without any notice of default being required by the mere expiry of the term of payment, as
well as in case of the Client’s (filing for) bankruptcy or suspension of payment, the Client being placed under
guardianship or under administration, liquidation and in case the Client’s goods have been attached. All costs related
to the payment will be borne by the Client, unless otherwise agreed on.
All costs, especially the extrajudicial and judicial costs for the collection of our claim relating to overdue payment will
fall on the Client who is in default. The extrajudicial costs will amount to 20% over the amount due. We have the right
to determine to which debts payments will be allocated, yet payments will in any case first be deemed to reduce the
interest and the costs incurred by or on our behalf.
We are at all times entitled to demand further payment securities from the Client. If the request for security has not
been fulfilled within 10 days, the Client will be in default without further notice and the order will be deemed
terminated. The Client will be liable for all costs and damage arising from the order and the early termination.
We are entitled to demand from the Client to sign a deed of assignment to transfer its claim(s) on its customer, to
which the Client is committed towards us, if we claim so, such in security of the payment of the Client’s debt(s) to us.
XIII APPLICABLE LAW
Dutch Law applies to all our agreements to which these conditions apply.
XIV REGISTRATION AND COMMENCEMENT OF VALIDITY
These conditions are registered at the Chamber of Commerce and Industry in The Hague and are valid from
august 1 1995.
GENERAL TERMS FOR ORNAMENTAL PLANT AND NUTRITIONAL HORTICULTURE PRODUCTION OF PLANTUM
General sales and delivery terms of Plantum for ornamental and horticulture cultivation material and plants as well as horticulture materials. Filed at the Rotterdam Chamber of Commerce in Rotterdam, Gouda office, on 21 May 2012.
In case of any contradiction between the Dutch version and the translation, the Dutch version shall prevail.
Article 1 Definitions
1. ‘Seller’ refers to: the natural or legal person engaged in delivering products as indicated in article 1 part 3 and in concluding transactions regarding such products, in the broadest sense, including the purchase and sale of products, the rental and/or sale of products he has cultivated himself and reproducing flowers or plants.
2. ‘Buyer’ refers to: the natural or legal person with whom the seller enters into any agreement regarding the products indicated in article 1 part 3.
3. ‘Product’ or ‘products’ refers/refer to: cultivation material and/or ornamental and horticultural plants as well as horticulture materials, such as fertilizers and crop protection products.
Article 2 Area of application
1. These General Terms apply to all offers, sales and deliveries made by the seller and agreements concluded by the seller regarding the products as described in article 1 part 3 of these General Terms.
2. Any terms of the buyer, of any type and by any name are not applicable, unless expressly agreed in writing.
3. Divergent provisions must be agreed expressly and in writing. Inasmuch as these provisions do not replace the provisions of these General Terms, these provisions shall be deemed to supplement these terms.
4. A copy of these General Terms will be provided to the buyer by the seller.
Article 3 Offers and prices
1. All offers are non-binding unless otherwise agreed in writing. An offer will remain valid for a maximum of 30 days.
2. The agreement is deemed to have been concluded by written confirmation of the offer by the buyer, unless the seller objects in writing within five days after the buyer has sent confirmation.
3. If an agreement is concluded by the intervention of agents, travelling sales representatives and/or other intermediaries and/or retailers, this will only bind the seller once this has been accepted by the seller in writing.
4. Prices are exclusive of VAT and additional expenses, including: transport charges, packaging costs, cost of quality control and/or phytosanitary inspection, import duties, government and other official levies, as well as fees under breeders’ rights and any other fees, unless otherwise agreed in writing. If no price is agreed on, the seller’s price in effect at the time of delivery will apply.
5. The seller is entitled to adjust the price, in accordance with the requirements of reasonableness and fairness, to a level to be determined by the seller, if his expenses have increased significantly since the price was set.
6. Unless otherwise indicated, prices are in euros (€).
7. If the buyer cancels the agreement, he will immediately owe 25% of the gross sale value of the to be delivered products as a cancellation charge.
8. In the event that the products in question prove to be unsaleable or saleable only at a lower price as a result of said cancellation, the buyer will be liable for any price differences and other damages incurred by the seller.
9. Both parties are obliged to limit the possible damage due to the cancellation as much as possible.
Article 4 Conditions of sale
1. Orders for products for which materials have to be purchased from the buyer that is not yet fully grown at the time of purchase will be accepted by the seller subject to the normal cultivation average of good plant material with a good appearance.
2. Complete or partial failure of the cultivation or harvest of products or partial spoilage during storage for any reason will release the seller from the obligation to deliver and his other obligations, unless attributable to an intentional act or gross negligence on the part of the seller.
3. If the delivery of a variety that has been ordered is not possible for any reason, the seller is entitled to deliver another variety, or to cancel the order. The seller shall , in consultation with the buyer, make an effort to deliver a variety that is equivalent as much as possible. This replacement delivery shall take place under the same conditions as originally agreed. If the buyer does not accept another variety, the buyer has the right to cancel the order of this variety. If the order of the undeliverable variety is part of a larger agreement, then the cancellation referred to above only pertains to the undeliverable variety and the other parts of the agreement remain in effect. If delivery of another variety has been agreed, the buyer does not have the right to receive compensation for damages or to terminate the agreement.
Article 5 Delivery and transport
1. Delivery is ex works, unless otherwise agreed. On delivery, the risk connected to the products in question, with all that is connected there to, is transferred to the buyer.
2. After consultation with the buyer, the seller will determine the delivery date. Delivery dates indicated are not considered deadlines. If a delivery date is agreed on, the seller will endeavour to maintain that date for delivery in as far as possible. If the seller cannot deliver on the agreed date or within the agreed period, the seller will inform the buyer about this in the timeliest manner possible. Parties will determine a new delivery date in consultation. This new delivery date will then immediately constitute the agreed delivery date.
3. If the buyer receives the ordered products before the agreed delivery date or period as indicated in part 2, the resulting risk is entirely for the buyer.
4. If the buyer receives or wishes to receive the ordered products after the agreed delivery date, the risk of any loss of quality resulting from longer storage will be entirely for the buyer.
5. Any extra costs due to taking earlier or later delivery of the products as referred to in part 3 or 4 of this article will be charged to the buyer.
6. If after a certain storage period that may be considered reasonable in view of the type of product, the buyer has not received the product and the risk of loss of quality and/or spoilage of the products leaves no other option, the order will be deemed to have been cancelled by the buyer. In that case, the buyer is obliged to pay the damage incurred by the seller as a result.
Article 6 Packaging/carts/pallets
1. Single-use packaging can be charged and will not be taken back.
2. All packaging, except single-use packaging, remains the property of the seller.
3. The seller is entitled to charge the buyer an agreed user fee for reusable packaging and other durable material, which fee shall be specified separately on the invoice.
4. Within 30 days after delivery or immediately after planting, the buyer is obliged to return the packaging to the seller at his own expense and in good condition and under the proper hygienic conditions. If it has been agreed that the seller will collect the packaging himself, the buyer must see to it that the packaging remains in good state and under the proper hygienic conditions and store it so that the seller can collect it in a normal manner.
5. The buyer may not continue to use or allow third parties to use the packaging.
6. If carts, rolling containers or reusable pallets have been delivered with the products, then the buyer must return identical carts, rolling containers or reusable pallets with the same manner of registration (such as chip or label) within one week, unless agreed otherwise. The buyer may not keep these for his own use or allow third parties to make use of them.
7. In the event of damage or loss of reusable packaging, carts, rolling containers, pallets, etc., the buyer is obliged to repay the repair or replacement costs to the seller and also repay any extra rent as a result of late return.
Article 7 Payment
1. The seller is entitled to request an advance of 50% on the invoice amount from the buyer.
2. Payment must occur within thirty days after the invoice date, unless otherwise agreed.
3. The buyer is not entitled to reduce the purchase price by any counter-claim he may make.
4. The buyer is not entitled to suspend the fulfilment of his payment obligation in the event of a complaint submitted by him to the seller regarding the products delivered, unless the seller expressly agrees with the suspension in exchange for a guarantee.
5. All payments will be made at the offices of the seller or by deposit or transfer into a bank account to be indicated by the seller.
6. Payment must be made in euros (€) unless otherwise indicated on the invoice. In the last-mentioned case, the seller is entitled to charge exchange rate differences to the buyer.
7. If the buyer does not fulfil his payment obligation, mentioned in part 2 of this article, in time, he will be deemed to be in default by operation of law. The seller will then be entitled to charge interest at 1% monthly as from the date that the buyer is in default of fulfilling the payment obligation indicated in part 2, with a partial month being counted as a whole month. In the event of the buyer’s default, the seller shall also be entitled to charge the exchange rate loss suffered as a result of that.
8. If the buyer is in default or otherwise falls short in fulfilling any of his obligations, all reasonable costs to obtain satisfaction, both legal and extra-legal, will be at his expense.
9. The seller reserves the right to not carry out, or no longer carry out, orders or agreements if previous deliveries have not been paid for by the buyer or the buyer has not fulfilled or is at risk of not fulfilling his obligations to the seller. The buyer is required to pay the damage suffered by the seller due to this. The seller is not responsible for any damage to the buyer as a result of not carrying out orders.
10. The buyer located in a different EU Member State than the Netherlands will inform the seller in writing of his correct VAT identification number. Furthermore, the buyer shall provide all necessary information and documents that the seller requires as proof that the products have been delivered in a different EU Member State than the Netherlands. The buyer will indemnify the seller for all claims resulting from and all negative consequences of the buyer not or not entirely complying with the provisions in this article. The seller reserves the right to increase the price payable by the buyer with the VAT rate that would apply to the delivery in question in the event of delivery within the Netherlands.
Article 8 Force majeure
1. Force majeure refers to any circumstance outside the direct sphere of influence of the seller, as a result of which fulfilment of the agreement can no longer reasonably be expected. This may include strikes, fire, extreme weather conditions or government measures and diseases and plagues on the one hand or faults in the materials supplied to the seller on the other hand.
2. If the seller cannot fulfil its obligations because of force majeure, the seller must inform the buyer of the circumstances in writing as soon as possible.
3. In the event of force majeure, the parties will agree a change to the agreement or complete or partial dissolution of the agreement.
4. If the parties cannot agree on a change or dissolution within 10 days after the written notice of the circumstances in question, either of the parties may then apply to the court which is deemed competent by virtue of article 14.
Article 9 Unforeseen circumstances
1. In the event of unforeseen circumstances on the part of one of the parties that are so serious that, in view of the requirements of reasonableness and fairness, the other party may not expect that the concluded agreement will remain in effect unchanged, the one party will inform the other party about the unforeseen circumstances in writing and the parties will consult about a change of the agreement or about the complete or partial dissolution of the agreement.
2. If the parties cannot agree on a change or dissolution within 10 days after the written notice of the circumstances in question, either of the parties may apply to the court deemed competent by virtue of article 14.
Article 10 Guarantees and complaints
1. The seller guarantees that the products that are to be delivered on the basis of the order will comply with the requirements set out in the applicable regulations of Dutch testing authorities in effect at the time of concluding the agreement.
2. The seller does not guarantee the trueness to variety of the products that are generally known to branch back.
3. The seller does not guarantee the growth and blossoming of the products delivered.
4. The buyer will at all times be provided with all requested cultivation information to the best of the seller’s knowledge and abilities, by or on behalf of the seller, but without any liability on behalf of the seller.
5. The seller registers the crop protection products that he uses in his own records. Copies of this registration will be made available to the buyer upon request.
6. Complaints regarding visible defects, including those regarding the quantity, size or weight of the products delivered, must be indicated to the seller within two days after delivery and the seller must be informed in writing within eight days.
7. Complaints regarding non-visible defects must be indicated to the seller immediately after detection (within two days at the latest) and the seller must be informed in writing within eight days.
8. Complaints must also be indicated to the seller at such a time that the seller can check the product.
9. A complaint must at least include: a. A detailed and accurate description of the defect; b. The storage location of the product to which the complaint refers; c. A specification of facts on the basis of which it can be determined that the products delivered by the seller and those rejected by the buyer are the same.
10. When the products delivered are rejected by the buyer under the terms of this article and the buyer and the seller do not immediately agree on an amicable settlement, the buyer must then appeal to an independent, officially accredited expert who will compile an expertise report. The costs of the expertise report will be for the seller if the rejection is justified and for the buyer if it is not justified. In any case, the buyer shall advance the costs in question.
11. Complaints regarding a portion of the products delivered cannot give rise to rejection by the buyer of the entire delivery.
12. The buyer is obliged to check the delivered quantity of the shipment delivered, or have this checked, on receipt and to report a deviation of the quantity to the seller in accordance with part 6 of this article.
13. Expressing a complaint does not suspend the buyer’s obligation to pay, regardless of any justification of a complaint.
Article 11 Liability
1. The seller accepts no liability whatsoever, unless in one of the cases specified in this article. In such a case, the liability of the seller will be limited to no more than the amount of the invoice. In no event whatsoever, shall the seller be liable for any form of consequential damage, loss of turnover or loss of profit.
2. The seller is not liable for damages due to force majeure as indicated in article 8 part 1.
3. All liability regarding non-timely delivery by the seller is hereby excluded, unless the agreed delivery date referred to in article 5 part 2 is exceeded by more than seven days. If the delivery date is exceeded by more than seven days, the seller must be given written notice of default, whereby the buyer must set a reasonable period for the seller to fulfil his obligations as yet.
4. Compensation in the event of a complaint can only take place if the complaint, submitted in accordance with article 10, proves to be justified and provided that there is culpability or conscious negligence on the part of the seller. Moreover, the compensation shall be limited to the part of the delivered goods to which the complaint pertains.
5. In the event of a partial failure of the cultivation at the buyer as a result of the delivered products, then, if the seller is required to pay compensation for damages by virtue of part 4 of this article, the compensation of damages payable by the seller shall not exceed the percentage of the invoice value that equals the portion of the cultivation that failed at the buyer. If, when the damage is reported, the seller and the buyer jointly determine or a third party determines the percentage of deviating, diseased or weak plants, this percentage will determine the seller’s maximum liability.
6. The buyer may not deduct damage compensation from any outstanding amounts payable to the seller and damage compensation does not entitle the buyer not to pay the invoice amount or not to pay this timely.
7. Both parties are obliged to ensure that any damage is limited as much as possible.
8. Each possible claim regarding compensation for damages pursuant to these General Terms expires, if and as soon as one year has passed since the delivery of the products in question when the claim has not been submitted to the seller in writing.
Article 12 Transfer of ownership, retention of ownership and surety
1. Except for the terms of part 2 of this article, ownership of the products is transferred to the buyer at the time of delivery under article 5 of these General Terms.
2. All delivered and to be delivered products, and the products arising therefrom, irrespective in which stage of the cultivation process, remain the sole property of the seller, until all claims that the seller has or acquires vis-à-vis the buyer, including in any case the claims specified in Book 3, Section 92, Subsection 2 of the Dutch Civil Code have been paid in full.
3. As long as the ownership of the products has not been transferred to the buyer, the buyer may not pledge the products or grant any other right to these products to third parties, except within the context of his normal business operations. The buyer undertakes upon the seller’s first request to cooperate in establishing a pledge right on the receivables that the buyer acquires or shall acquire following the delivery of the products to his customers.
4. The buyer is obliged to store the products that have been delivered subject to retention of title with the necessary care and in such a manner that the products can be identified by the seller.
5. The seller is entitled to repossess the products delivered subject to retention of title and that are still located at the buyer if the buyer is in default with regard to the fulfilment of his payment obligations or is experiencing payment difficulties or threatens to experience payment difficulties. The buyer shall grant the seller free access to his premises and/or buildings for the inspection of the products and/or in order to exercise the seller’s rights.
6. If there is any doubt in the mind of the seller regarding the ability of the buyer to pay, the seller will be entitled to defer performances until the buyer has provided surety for the payment. If the buyer has not provided surety for the payment within fourteen days after being ordered to do so, the seller is entitled to terminate the agreement by cancellation. In this case, the buyer will be liable for the expenses incurred by the seller.
Article 13 Protection under breeders’ rights or contractual protection of varieties
1. The delivered products may only be used by the buyer to cultivate end products at the buyer’s business premises. The end product may only be sold by the buyer under the relevant variety name and trademark if applicable.
2. Starting material and plant material of species protected by a breeders’ right applied for or granted in the Netherlands or any other country or by a contractual transfer provision may not be used to further reproduce the variety. Furthermore, illegally reproduced starting material and plant material may not be: a. treated for the purpose of reproduction, b. brought into the realm of commerce, c. traded further, d. exported, e. imported, or kept in stock for one of these purposes.
3. The seller is entitled to access to the business premises of the buyer or lots under the buyer’s control where the starting or plant material delivered by the seller is located to view and/or assess said material. The seller will inform the buyer of his arrival in a timely manner.
4. The buyer is obliged to provide immediate access to his business and the crops to inspection authorities carrying out inspections on behalf of the owner of a variety delivered to him. Upon request, the buyer must also provide immediate access to his records, such as invoices, that are relevant to this inspection.
5. If the buyer finds a mutant in the protected variety, he must immediately inform the holder of the breeders’ right and/or his representative by registered letter.
6. At the written request of the holder of the breeders’ right and/or his representative, the buyer will provide the holder of the breeders’ right and/or his representative, within two months of receiving the request, with test material of the mutant, free of charge.
7. The buyer is aware that the finder of a mutant, being an essentially derived variety, in the protected variety requires the permission of the holder(s) of the breeders’ right regarding the ‘parent variety’ to exploit the mutant.
8. In particular, the buyer is aware that the finder of a mutant requires the permission of the holder of the breeders’ right regarding the ‘parent variety’ to carry out the actions indicated in part 2 regarding all material of the mutant, including harvested material (therefore also flowers, plants and/or plant parts).
9. The buyer is obliged to provide all cooperation desired by the seller, including cooperating in collecting evidence, in the event that the seller becomes involved in proceedings regarding breeders’ rights or other intellectual property rights.
10. The buyer grants permission to wholesalers, auctions, importers and/or exporters to provide information to the holder of the breeders’ rights and/or his representative regarding the quantity of harvested product that the buyer trades of the variety of the holder of breeders’ rights. In addition, the buyer grants specific permission to the auctions to provide information to the holder of the breeders’ rights and/or his representative regarding the quantity of his product that is traded at the auction under the code ‘other’.
Article 14 Dispute settlement
1. Dutch law applies to all agreements to which these General Terms apply in whole or in part.
2. All disputes (even those deemed as such by only one party) regarding or arising from the agreements concluded between the seller and the buyer, to which these General Terms apply, can be settled by the Dutch court that is competent in the area in which the seller is established. In addition, the seller is entitled at all times to summon the buyer to appear before the court which is competent by law or by virtue of the applicable international convention.
Article 15 Final clause
If and insomuch as any part or provision of these General Terms proves to be contrary to any compulsory provision of national or international law, it will be deemed not agreed on and these General Terms will otherwise bind the parties. The parties will then confer to arrive at a new provision corresponding as much as possible to what the parties intended.
GENERAL SERVICE CONDITIONS
General conditions for the contractual performance of plant raising work on plant reproduction material for horticultural products by order Gedeponeerd bij de Kamer van Koophandel Rotterdam op 13 januari 2011.
Filed in the Dutch language with the Chamber of Commerce of Rotterdam on 13 January 2011. In case of any contradiction between the English and Dutch version of these general conditions, the Dutch version shall prevail.
Article 1 Applicability
1. These general conditions shall apply to any agreement in which the client supplies plant reproduction material, namely seed, cutting or tissue culture, to the contractor with the order to raise this reproduction material into planting material. The basis of this agreement is that the ownership of the reproduction material and the planting material resulting therefrom shall always remain vested in the client.
2. Any conditions of the client, of any nature whatsoever and by any name whatsoever, shall not apply unless they have been agreed explicitly in writing.
3. Deviating provisions must be agreed explicitly and in writing. In so far as they do not take the place of the provisions of these general conditions, they shall be deemed to supplement these conditions.
Article 2 Definitions
1. The “client” shall be the natural person or legal person who gives the “contractor” the order to raise plant reproduction material that is the property of the client into planting material that is suitable for cultivation at the business of the client or for further cultivation elsewhere.
2. The “contractor” shall be the natural person or legal person who undertakes to perform the work that is necessary to raise planting material.
Article 3 Offers and prices
1. All offers shall be without engagement unless something else has been agreed in writing. An offer shall have a period of validity of at most 30 days.
2. With the client’s written acknowledgement of the offer, in which connection it is explicitly indicated that this concerns an order for services, the agreement shall be deemed to have been concluded, unless within five days after dispatch of the client’s acknowledgement a written objection is made thereto by the contractor.
3. Agreements shall be concluded on condition that the plant reproduction material, with mention of the name of the variety and corresponding specifications, at the start of the raising work is available to the contractor.
4. If the agreement is created through the intermediary of agents, commercial representatives and/or other middlemen and/or retailers, it shall only bind the contractor after it has been accepted by the contractor in writing.
5. The prices shall be exclusive of VAT and additional costs, including transport charges, costs of packaging, costs of quality control and/or phytosanitary examination, import duties, government and other levies under public law, and also payments under breeders’ rights and possible other payments, unless something else has been agreed in writing.
6. In so far as nothing else has been indicated, the prices shall be in euros (€).
7. In the event of cancellation of the agreement by the client before sowing or planting the client shall immediately owe 25% of the invoice value of the agreed raising work. The client shall furthermore be liable for all expenses already incurred by the contractor. In the event of cancellation of the agreement by the client after sowing or planting the client shall immediately owe 100% of the invoice value of the agreed raising work as compensation for the cancellation.
8. In the event that the client wants the seed or planting material back after the above-mentioned cancellation, he must inform the contractor about this simultaneously with the cancellation. If the client does not collect the seed or planting material from the contractor within seven days after cancellation, the contractor shall be entitled to destroy the seed or planting material.
9. Both parties shall be obliged to limit any damage as much as possible.
1. Delivery shall be made ex works, unless something else has been agreed.
2. After consultation with the client the contractor shall determine the date of delivery. Stated times of delivery shall not be considered deadlines. If a date of delivery has been agreed, the contractor shall aim at adhering to this date for delivery as much as possible. If the contractor cannot deliver on the agreed date or within the agreed period, he shall inform the client on the subject in the timeliest manner possible. Parties will determine a new date of delivery in consultation. This new date of delivery will be the agreed date of delivery as mentioned in article 10 paragraph 5.
3. If the client takes the ordered products before the agreed date or period as provided in paragraph 2 the risk following from this shall be entirely for the client.
4. If the client takes or wants to take the ordered products after the agreed date of delivery, the risk of a possible loss of quality occurring owing to longer storage shall be entirely for the client. At the same time the costs made by the contractor for the longer raising period shall be charged to the client.
Article 5. Packaging/packing/carts/pallets
1. One-way packaging shall be charged at cost price and shall not be taken back.
2. All packing and packaging, with the exception of one-way packing, shall remain the contractor’s property.
3. The contractor shall be entitled to charge the client an agreed user fee for reusable packaging and other durable material, which fee shall be stated separately on the invoice.
4. Within 30 days after delivery or immediately after planting the client shall be obliged to return to the vendor packaging and packing at his own expense and in good condition and under the proper hygienic conditions. If it has been agreed that the contractor will collect the packaging and packing himself, the client must see to it, in connection with the date announced by the contractor, that packaging and packing remain in a good state and under the proper hygienic conditions and store them in such a way that the contractor can collect them in a normal manner.
5. The client may not continue to use or allow third parties to use the packaging and packing.
6. Carts, rolling containers and reusable pallets must be returned immediately unless something else has been agreed. It shall be forbidden to keep them for one’s own use or to allow them to be used by third parties.
7. In the event of damage or loss of reusable packages, carts, rolling containers, pallets, etc. the client shall be obliged to pay the contractor the repair or replacement costs and also any extra rent as a result of late return.
Article 6 Payment
1. Payment must be made in different instalments, which shall be charged as the service proceeds. Per instalment the contractor shall charge the necessary material and auxiliary materials, which shall become the client’s property after payment. Packaging and packing shall not be included in this.
2. All payments are to be made within seven days after the invoice date. Payment of the last instalment must be made prior to the delivery of the planting material.
3. The client shall not be empowered to deduct any amount of a counterclaim asserted by him from the price to be paid by him.
4. The client shall not be empowered to suspend the fulfilment of his obligation of payment in the event of a complaint submitted by him to the contractor about the products delivered.
5. All the payments shall be made at the office of the contractor or by deposit or transfer into a bank account to be designated by the contractor.
6. Payment must be made in euros (€) unless something else is stated on the invoice. In the last-mentioned case the contractor shall be entitled to charge exchange differences to the client.
7. If the client does not fulfil his obligations of payment in time, he shall be deemed to be in default by operation of the law. The contractor reserves the right to claim the ownership of the planting material at that time. The contractor shall not be liable for any damage on the part of the client as a result of failure to deliver the planting material.
8. Moreover the contractor shall be entitled to charge an interest of 1% a month from the day that the client has failed to fulfil the obligation of payment mentioned in paragraph 2, in which connection part of a month shall be counted as a whole month. In the event of the client’s default the contractor shall also be entitled to charge the exchange loss suffered as a result of that.
9. If the client is in default or if he fails in any other way in fulfilling any of his obligations, all reasonable costs to obtain satisfaction both judicially and extrajudicially shall be for his account.
10. The contractor reserves the right not or no longer to perform orders or agreements if in any way the client has not fulfilled his obligations to the contractor or there is a threat of non-fulfilment. The contractor shall inform the client of this immediately. The contractor shall not be liable for any damage on the part of the client as a result of non-performance of orders.
Article 7. Force majeure
1. Force majeure shall be: any circumstance beyond the contractor’s immediate control, as a result of which performance of the agreement cannot reasonably be expected. In this connection consideration may be given to strikes, fire, extreme weather conditions or government measures and diseases and pests on the one hand and defects in the materials supplied to the contractor on the other hand.
2. If the delivery cannot be made by the contractor as a result of force majeure, the contractor must inform the client in writing as soon as possible about the circumstances.
3. In the event of force majeure the parties shall consult about a change of the agreement or about the whole or partial dissolution of the agreement.
4. If the parties cannot agree on amendment or dissolution within 10 days after the written statement of the said circumstances, each of the parties may apply to the court.
Article 8 Unforeseen circumstances
1. In the event of unforeseen circumstances on the part of one of the parties that are so serious that, having regard to the demands of reason and fairness, the other party may not expect that the concluded agreement will remain intact without change, the parties shall consult about a change of the agreement or about the whole or partial dissolution of the agreement.
2. If within 10 days after written communication of the relevant circumstances the parties cannot agree on an amendment or dissolution, each of the parties may apply to the court.
Article 9 Guarantees and complaints
1. The contractor guarantees that the products that must be supplied on the basis of the order comply with the demands imposed in the applicable rules of Dutch inspection agencies that are in force at the time of conclusion of the agreement.
2. The contractor shall not guarantee the quantity, the quality and the properties of the planting material that is cultivated from the plant reproduction material supplied. Furthermore the contractor cannot guarantee the absence of defects, explicitly including diseases that are the result of the plant reproduction material supplied.
3. The contractor shall not guarantee the growing and flowering of the products supplied.
4. Complaints in connection with visible defects must be made known to the contractor at the latest within two days after delivery and be communicated to the contractor in writing within eight days.
5. Complaints in connection with non-visible defects must be made known to the contractor immediately (and at any rate within two days) after they have been discovered and be communicated to the contractor in writing within eight days.
6. Moreover complaints must always be communicated to the contractor at such a time that the contractor can check the planting material. In order to be able to carry out the check the contractor must moreover receive immediate permission from the client to enter the latter’s business.
7. A complaint must at any rate contain: a. An extensive and accurate description of the defect; b. The storage space of the planting material to which the complaint relates; c. A statement of facts on the strength of which it may be determined that the products supplied by the contractor and criticized or rejected by the client are the same.
8. Complaints in connection with part of the goods supplied cannot be a reason for the client’s rejection of the whole delivery.
9. The client shall have the obligation to (have others) check the delivered quantity of the delivered parcel at the time when it is taken receipt of, and report any noted deviation in quantity in conformity with paragraph 4 to the contractor.
10. The issuing of a complaint shall not suspend the obligation of payment of the client, irrespective of any soundness of a complaint.
Article 10 Liability
1. The contractor shall not be liable for any damage, except for the circumstances mentioned in this article. In such circumstances the liability of the contractor shall not exceed the invoice value of the agreed plant raising work. In no circumstance shall the contractor be liable for any form of consequential damage, loss of turnover or loss of profit.
2. The contractor shall not be liable for damage caused by force majeure as referred to in article 7 paragraph 1.
3. The contractor shall not be liable for any damage that is the result of the quality and health of the plant reproduction material that has been made available by the client.
4. The client shall indemnify the contractor for any damage that may arise on the part of the contractor or third parties as a result of diseases or other defects in the plant reproduction material that he has made available to the contractor.
5. All liability in connection with untimely delivery by the contractor is hereby excluded, unless the agreed date of delivery is delayed by more than seven days. In the event of a delay in the date of delivery by more than seven days the contractor must be held in default in writing, on which occasion the client will have to give the contractor a reasonable period to fulfill his obligations.
6. In case of a complaint which is submitted in conformity with article 9, the contractor shall only be liable if the complaint submitted turns out to be justified and it is also a question of culpability or willful negligence on the part of the contractor. In case of a damage claim, the percentage of deviating, sick or weak plants shall be determined by the contractor and client jointly or by an independent third party. This percentage shall be decisive for the contractor’s maximum liability. The client shall be obliged to see to it that the damage as a result of deviating, sick or weak plants is limited as much as possible.
7. Compensation may not be set off by the client and shall not create any right not to pay the invoice amount or not in time.
Article 11 Protection of original varieties under breeders’ rights or contract
1. Plant reproduction material and/or planting material of varieties that are protected by a breeders’ right applied for or granted in the Netherlands and/or any other country or by means of a contractual perpetual clause may not a be used for the production or further multiplication of the variety; b. be treated for the multiplication c. be brought on to the market d. be traded any further, e. be exported, f. be imported or be kept in stock for any of these acts.
2. The client guarantees that the permission of the holder of the breeder’s right has been obtained for the acts that the contractor has to perform within the framework of the agreement.
3. The client and the contractor shall be obliged to respect any breeder’s, trademark and patent rights that attach to the relevant planting material.
Article 12. Settlement of conflicts
1. All the agreements to which these general conditions relate in full or in part shall be governed by Dutch law.
2. Any conflicts (also those that are only regarded as such by one party) in connection with or following from the agreements concluded between the contractor and a client established abroad, to which these general conditions apply, may only be decided by the Dutch court, which has jurisdiction in the area in which the contractor is established. Furthermore, the contractor shall have the right to summon the client before the court that is competent by law or pursuant to the applicable international convention.
Article 13 Final provision
If and in so far as any component or any provision in these general conditions should appear to be in breach of any coercive provision of national or international legislation it shall be regarded as not having been agreed and these general conditions shall for the rest continue to bind the parties. The parties shall then enter into consultation to arrive at a new provision that complies as much as possible with the intention of the parties.