General Conditions of sale and supply of initial plant material of ornamental plant products, as drawn up by Plantum NL and filed with the Chamber of Commerce at Gouda.
Art. 1. Applicability
- These General Conditions apply to all quotations made by the seller, as well as to all orders accepted and agreements entered into by the seller and the execution of such orders and performance of such agreements.
Any deviating conditions shall expressly be agreed upon in writing and in as far as they do not supersede the stipulations of these General Conditions, be regarded as supplementary to the present Conditions.
- An agreement concluded with the buyer through a representative or other agent shall be binding upon the seller as soon as the agreement has been confirmed in writing by the seller.
In the event, however, that the buyer has not received a written confirmation or any other notice from the seller 14 days of the order, the seller is deemed to be bound from that moment onwards.
- Seller’ is understood to mean: the natural or legal person who conducts the business of supplying initial plant material of ornamental plant products, of rendering services and concluding transactions relating to the material referred to above, this in the broadest sense, including the purchase and sale of products, the hiring out and/or sale of products of his own growing, the propagation of flowers and plants.
‘Buyer’ is understood to mean: the natural or legal person, who has communicated his intention to wish to make use of the seller’s services, as well as every buyer, hirer and in a general sense every person with whom the seller concludes any agreement relating to initial plant material of ornamental plant products.
Art. 2. Offers and Prices
- All offers shall be without engagement, unless they include a term for acceptance.
If any offer made without engagement is accepted by the buyer, the seller shall have the right to withdraw the offer within 5 working days after having received the buyer’s acceptance.
- Prices are exclusive of VAT and agreed costs, which include: packing charges, costs of quality control and/or phyto-sanitary examination, import duties, governmental and other public levies, as well as plant breeders’ and other fees, if any.
- Prices are deemed to be quoted in EURO currency and for the UK in Pound Sterling.
Art. 3. Force Majeure
- If the seller is unable to deliver on account of force majeure, the seller shall notify the buyer of the circumstances as soon as possible by telefax message or by registered letter.
This notification must be given on such notice that the buyer shall, to the best of his ability, be able to ensure an alternative delivery, should he so wish.
- In the event of force majeure preventing delivery, the parties will be obliged to enter upon mutual consultation respecting the effects hereof, namely the setting aside of the agreement in whole or in part or suspension of the performance.
- In the event of force majeure preventing delivery and the parties fail to reach joint agreement on the choice, the seller shall have the right to make the choice.
If the seller has opted to suspend performance in such manner that delivery takes place more than 14 days after the original delivery date agreed upon, the buyer shall have the right to notify in writing that he considers the agreement to be set aside.
- Force majeure shall be understood to mean: any circumstance beyond the seller’s direct control as a result of which performance of the agreement cannot reasonably be required, such as for instance strikes, fire, extreme weather conditions or government measures.
Art. 4. Unforeseen circumstances at buyer’s
- In the event of unforeseen circumstances — which are of such a nature that the seller may, according to the criteria of reasonableness and equity, not expect that the sales contract concluded be maintained in an unmodified form — the parties will consult about the modification of the sales agreement or about the setting aside of the sales agreement in whole or in part.
- In the event that the parties fail to reach agreement on the modification or the setting aside within 10 days after the written notification of the circumstances mentioned before, either party may, if so required, apply to the court.
Art. 5. Delivery, transport, cancellation
- Delivery is deemed to take place at the moment that the initial material will actually be put at the buyer’s disposal at the agreed place.
- The dates of delivery stated shall not be deemed to be deadline delivery dates, unless expressly agreed otherwise.
If not expressly agreed otherwise, the seller shall thus have to be put into default in writing in the event of a delayed delivery, in the notice of default the buyer shall have to set a reasonable term for the seller to fulfill his obligations as yet.
- If the seller and the buyer have not made any arrangements, the seller shall use his best judgment in making transport arrangements.
- The transport costs shall be charged to the buyer.
- In the event that the buyer cancels the agreement, 25% of the gross selling value of the products to be supplied will become immediately payable by the buyer as a compensation for the cancellation.
In the event that, owing to this cancellation, the products concerned are unsaleable or can only be sold at a lower price, the buyer is liable for possible differences in prices and further damage to be established by the Court.
Both parties are under the obligation to keep possible damage down to a minimum.
- If the buyer takes delivery of or states his wish to take delivery of initial material ordered at a later date than the one agreed upon, the risk of any decrease in quality of the products which is caused by this delay shall be fully borne by the buyer.
However, if the buyer fails to accept delivery after expiry of a limited storage time, which may be considered reasonable in view of the type of product, and the risk of any decrease in quality and/or deterioration of the initial material leaves to other option, the order shall be deemed to have been cancelled by the buyer.
In such a case the buyer becomes liable to pay any damage incurred by the seller as a consequence hereof, in accordance with the stipulations set forth in paragraph 5 of this Article.
- The aforesaid stipulations in this Article shall be interpreted by both parties in accordance with the criteria of reasonableness and equity.
Art. 6. Packing
- Disposable packing will be charged at cost price and not be taken back.
- Packing materials used more than once and other durable materials (containers, stacking trolleys etc.), which remain the seller’s property shall also be charged at cost price and must be returned clean and in an undamaged condition. The buyer shall be charged for the costs of the return transport.
However, if the materials are returned within 30 days after the date of invoice, the costs charged for the return transport and for the materials will be credited, possibly after deduction of an agreed percentage or amount for their use.
- The seller has the right to charge the buyer an amount for the use of packing materials used more than once and other durable materials. This amount will be stated on the invoice separately.
Art. 7. Payment
- Payment shall be effected within 30 days after the date of invoice.
The buyer shall not be entitled to make any deductions from the purchase price to be paid by him on account of a counterclaim lodged by him.
If the buyer makes use of the right to suspend his payment obligation, the buyer is under the obligation to provide a payment guarantee until it has been established whether the claim lodged by the buyer was justified.
- If the buyer fails to meet his obligations to pay in time, he is deemed to be in default by operation of the law.
In such a case the seller shall be entitled to charge interest at a rate of 1% per month, starting from the date on which the buyer failed to fulfil the obligations to pay referred to in paragraph 1, part of a month to be calculated as a full month.
In case of the buyer’s default, the seller shall also be entitled to charge the exchange rate loss incurred as a consequence of this default.
- All payments shall be effected at the office of seller or by means of remittance into a bank account to be designated by the seller.
- If payment has to be effected through the agency of a third party, any costs arising in connection with this shall be at the buyer’s expense.
This implies that the defaulting buyer shall owe — regardless from possible legal costs — on account of the costs incurred as a consequence of his being in default, a forthwith payable sum which is equal to 15% of the invoice amount or the actual collecting costs.
- The seller reserves the right not to carry our orders if previous deliveries have not been paid by the buyer within the agreed terms of payment.
The seller shall not be able for any damage incurred by the buyer as a consequence of this non-delivery.
Art. 8. Complaints
- Complaints concerning visible flaws of products supplied, should be reported to the seller by telefax/telex/telegram or telephone immediately after they have been established or at any rate within 72 hours after receipt of the products. Each complaint shall be confirmed within 8 days after receipt of the products by the buyer by means of a registered letter.
- Contrary to the stipulations set forth in paragraph 1, complaints concerning hidden flaws of the initial material supplied are to be made to the seller immediately after they have been established and at any rate they have to be lodged with the seller in writing at such early notice that the latter will be able to verify or to have verified the justness of the complaints or — if possible — to take back the material supplied.
- The complaints shall at least state:
a. a detailed and accurate description of the flaw;
b. a statement of any further facts from which can be deduced that the products supplied by the seller and the products rejected by the buyer are indeed one and the same.
- If products supplied are rejected by the buyer on the basis of the provisions in this Article and the buyer and the seller do not forthwith reach agreement on an amicable settlement, the buyer shall appeal to an independent, officially recognised expert, who will draw up a surveyor’s report.
The costs of the expert’s advice shall, if the rejection is justified, be at the seller’s expense and in case it is unjustified, at the buyer’s expense. The buyer shall in any case have to advance the relevant costs.
- Complaints relating to part of the material delivered cannot give rise to the buyer rejecting the entire consignment.
- The buyer shall be under the obligation to check or to have checked the quantity of the consignment delivered when taking delivery, and to report any shortage established to the seller immediately after receipt of this consignment.
Art. 9. Guarantees and limited liability
- The seller guarantees that the products, which have to be supplied on the basis of the order, meet the requirements laid down in the applicable rules of the Dutch inspecting bodies, which are in force at the time the sales agreement was concluded.
The seller does not guarantee the trueness to type of those products which are generally known as subject to mutation reversal.
- The seller gives no guarantee regarding growth and flowering of products supplied.
- The compensation paid by the seller for possible damage sustained by the buyer shall never exceed the invoice value of the product or products delivered to which the complaint relates, unless the buyer proves that the damage was caused by wilful intent or gross negligence on the part of the seller.
- Any information pertaining to cultivation provided by or on behalf of the seller shall be provided to the best of his ability and knowledge, and no liability shall attach to the seller in this regard.
Art. 10. Transfer of title and risk
- Without prejudice to the stipulations of paragraph 2 of this Article, products become the property and risk of the buyer on the moment of delivery in accordance with Article 5, paragraph 1 of these General Conditions.
- For as long as the buyer has not paid the full amount of the purchase price with additional costs, if any, or has provided security in respect thereof, the title in the products shall remain with the seller. The title in the products shall pass on to the buyer as soon as he has fulfilled his obligations to pay towards the seller.
- If the seller becomes aware after the conclusion of the agreement of circumstances which give him ground to fear that the buyer will fail to fulfil his obligation to pay the purchase price, the seller shall be entitled to:
a. suspend delivery of the products until the buyer has provided security for the payment or
b. to annul the agreement by termination if the buyer did not provide security for the payment within 14 days of the summons, without prejudice to the seller’s right to recover any damage sustained as a consequence hereof from the buyer.
Art. 11. Protection of original varieties by means of plant breeders’ rights or contractual clause
- Initial material of varieties belonging to the sector of ornamental plant products, which are protected by plant breeders’ rights applied for or granted in the Netherlands and/or any other country or by virtue of a perpetual clause in a contract, may not be used for purposes of propagation or resale.
- Varieties protected in this manner are indicated by the seller with the letters “R” or “P”.
- Initial material supplied may only be used by the buyer for the cultivation of cut flowers and/or other floricultural end products on the premises of the buyer.
- The seller shall have the right of access to the buyer’s premises or the plots under his control where the initial material supplied by the seller is located, in order to inspect or assess this material. The seller shall inform the buyer of his visit in good time.
- The buyer shall only resell the end product deriving from the cultivation material bought and received by him from the seller, under the respective (variety) name, and possible brand name.
- If the buyer comes across a mutant of the protected variety he shall communicate this fact immediately by registered mail to the holder of the plant breeders’ right.
- At the written demand of the holder of the plant breeders’ right the buyer shall submit test material obtained from the mutant to the holder of the plant breeders’ right, and do so within two months of receiving the letter.
- The buyer hereby acknowledges that the discoverer of a mutant requires the permission of the breeder(s) of the source variety to commercially produce the mutant variety.
- More explicitly, the buyer acknowledges that the discoverer of a mutant requires the permission of the holder of the plant breeders’ right to the variety from which the mutant is derived to perform the actions mentioned below on all materials obtained from that variety, including materials already harvested, such as flowers, plants and parts of plants:
a. to propagate or multiply (breed) them;
b. to bring them into any condition for purposes of breeding;
c. to offer them for sale;
d. to sell or market them in any way;
e. to export them;
f. to import them;
g. to store them for any of the purposes mentioned above under (a) through (f).
Art. 12. Disputes
- All agreements that fall within the scope of the present General Conditions, in part or as a whole, shall be governed by the law of the Netherlands.
- Any disputes (also those disputes that are considered as such by only one of the parties) concerning or arising out of agreements concluded by the seller and a buyer who is established abroad, to which these General Conditions apply, shall only be capable of being decided by the Dutch Court having jurisdiction in the district where the seller is established.
Art. 13. Final stipulation
- If and in so far as any part or any stipulation of these General Conditions would appear to be in conflict with any strictly binding national or international statutory provision, the said part or stipulation shall be deemed not to have been agreed upon and the remaining General Conditions shall continue to be binding on both parties.