General Terms and Conditions of Sale of Van der Plas Group
Drawn up by the Association of Wholesalers in Horticultural Products (VGB),
filed with the Chamber of Commerce in Amsterdam under number 40596609.
Version October 2021
I. General
These general terms and conditions apply to all offers made by a wholesaler (hereinafter referred to as “Seller”) and to all agreements concluded between Seller and a customer (hereinafter referred to as “Buyer”), as well as to the performance thereof. Unless the application of Buyer’s terms and conditions has been agreed in writing, such terms and conditions are expressly excluded.
Provisions deviating from these General Terms and Conditions must be agreed in writing by the parties. They take precedence over these General Terms and Conditions.
II. Offers / Agreement
Offers are without obligation, unless they contain a term. If an offer includes a non-binding proposal that is accepted by Buyer, Seller nevertheless has the right to revoke the offer within two working days after receipt of the acceptance.
Data published by Seller regarding the offered product – including but not limited to illustrations, product specifications and similar expressions – on the website or in any other way, are for indication purposes only. They are not binding on Seller and Buyer cannot derive any rights therefrom, unless Seller has expressly stated in writing that the relevant products are identical to the published data.
An agreement is concluded at the moment of express acceptance of the order by Seller in a manner customary in the industry.
Offers are one-off and do not apply to repeat orders.
III. Prices
Prices are ex works (ex Seller’s premises).
Unless otherwise agreed, prices do not include value added tax (VAT), import duties, other taxes and levies, costs of quality control and/or phytosanitary inspection, costs of loading and unloading, packaging, transport, insurance, and the like. All cost-increasing factors that are initially paid by Seller and/or which Seller is required to charge to Buyer on the basis of a statutory regulation will be charged by Seller to Buyer. Transport insurance will only be taken out at Buyer’s express request and at Buyer’s expense.
Prices are quoted in euros, unless another currency is stated on the invoice.
IV. Delivery and Delivery Time
Delivery times indicated by Seller are indicative and do not entitle Buyer, in case they are exceeded, to termination or damages, unless the parties have agreed otherwise in writing.
If Seller will be unable to (partially) fulfil its obligation, it shall inform Buyer thereof as soon as possible. If Seller is unable to deliver the entire quantity ordered, it is entitled to make a partial delivery and/or to suspend the performance of the agreement and/or, in consultation with Buyer, to deliver other equivalent or similar products.
Unless otherwise agreed in writing, the place of delivery is the storage or processing facility of Seller, or another location designated by Seller. The risk passes to Buyer at the moment of delivery; if transport is to take place, at the moment the products are handed over to the carrier or leave the place of delivery for transport, irrespective of whether the transport takes place from the place of delivery and whether Buyer or Seller pays the transport costs.
Carriage-paid delivery is only made if and insofar as this is stated by Seller on the invoice or the order confirmation.
Seller reserves the right not to execute orders if Buyer has not paid a previous delivery within the agreed payment term, if Buyer has otherwise failed to fulfil its obligations towards Seller or, in Seller’s opinion, such non-performance is imminent.
If Buyer has not taken delivery of the products at the agreed time and place, Buyer is in default and bears the risk of any quality loss that may occur. The products ordered will be held at Buyer’s disposal, stored at Buyer’s expense and risk.
If, after the expiry of a limited storage period which may be considered reasonable in view of the type of product, no collection has taken place by Buyer and, in Seller’s opinion, the risk of loss of quality and/or spoilage requires intervention in order to limit damage as much as possible, Seller is entitled to sell the products concerned to third parties.
Non-performance by Buyer does not release Buyer from the obligation to pay the full purchase price.
Seller is not liable for damage resulting from non-delivery.
V. Force Majeure
In the event of force majeure, Seller may (partially) dissolve the agreement, or suspend delivery for the duration of the force majeure.
Force majeure includes, but is not limited to: civil commotion, war, strikes, natural disasters, epidemics, pandemics, terrorism, weather conditions, traffic conditions such as roadblocks, road works or traffic jams, fire, government measures (including but not limited to sanctions and anti-corruption measures) and similar events, even if these only affect third parties engaged in the performance of the agreement, such as a supplier of Seller or a carrier.
Force majeure explicitly also includes the situation in which Seller’s (main) bank applies or will apply regulations that may result in the relationship between Seller and this bank being terminated or threatened with termination if the agreement between Seller and Buyer remains in force, all this at Seller’s discretion.
VI. Packaging
Packaging is carried out in the manner customary in the flower and plant wholesale trade and will be determined by Seller as a prudent merchant, unless the parties have agreed otherwise in writing.
One-way (single-use) packaging may be charged and will not be taken back.
If the products are delivered in reusable packaging (cardboard boxes) and/or on durable transport materials (trolleys, containers, pallets, etc.), Buyer must return identical packaging material with the same registration (such as chip or label) to Seller within one week after delivery, even if a usage fee has been charged for this, unless otherwise agreed in writing.
If return shipment does not take place in time or, in the case of durable packaging and/or transport materials that have been lent to Buyer for a longer period, does not take place within an additional reasonable term set by Seller, Seller reserves the right to:
a) charge the costs thereof to Buyer, and
b) recover from Buyer any further damage suffered by Seller in this context, such as additional rental costs.Insofar as Seller initially pays the return transport costs, these will be charged separately to Buyer, unless otherwise agreed in writing. If a deposit is charged, it will be settled after the relevant material has been returned in good condition.
In the event of damage to or loss of reusable and/or durable packaging material, Buyer is obliged to reimburse Seller for repair and/or replacement costs, as well as any further damage suffered by Seller in this context, such as extra rental costs.
In case of a dispute between Seller and Buyer regarding outstanding quantities of transport materials, Seller’s administration is decisive.
VII. Complaints
Complaints concerning visible defects, including quantity, size or weight, must be reported to Seller immediately after discovery, or in any case within 24 hours after receipt of the products. Any complaint made by telephone must be confirmed in writing by Buyer within two days after receipt of the products. Visible defects must also be noted immediately upon delivery on the transport documents.
Complaints concerning non-visible defects in the delivered products must be reported to Seller immediately after discovery and, if the notification is not made in writing, must be confirmed in writing within 24 hours after such notification.
Complaints must contain at least:
a. a detailed and accurate description of the defect, supported by evidence such as photos or an expert report;
b. an indication of any further facts from which it can be inferred that the products delivered and rejected by Buyer are identical.Seller must always be given the opportunity to (have someone) investigate the correctness of the complaints on site and/or to take back the products delivered, unless Seller has stated in writing that it waives an investigation on site. The products must be kept available in the original packaging.
Complaints that relate to only part of the delivered products cannot justify rejection of the entire delivery.
After expiry of the periods referred to in paragraphs 1 and 2 of this article, Buyer is deemed to have approved the products delivered and/or the invoice. Complaints will then no longer be dealt with by Seller.
If a complaint submitted by Buyer is unfounded, Buyer shall reimburse Seller for the costs incurred in connection with the investigation.
VIII. Liability
Seller is not liable for any damage suffered by Buyer, unless and insofar as Buyer proves that there is intent or gross negligence on the part of Seller.
Defects relating to any phytosanitary and/or other requirements in force in the country of import do not entitle Buyer to damages or dissolution of the agreement, unless Buyer has informed Seller in writing of these requirements prior to conclusion of the agreement.
In no event shall Seller be liable for business interruption, delay damages, loss of profit, stagnation damage or other consequential loss suffered by Buyer. Should Seller nonetheless be obliged to compensate any damage, Seller’s liability is expressly limited to the invoice amount, excluding VAT, relating to the part of the delivery to which the damage relates.
Seller points out that in case of improper use, consumption, contact and/or hypersensitivity the products may lead to harmful effects on humans and/or animals. Furthermore, some products may cause damage to materials that come into contact with dripping moisture from the products. Buyer is obliged to pass on this warning to its customers and indemnifies Seller against all claims from third parties, including end-users, in relation to these effects.
IX. Payment
Payment must be made at Seller’s office and, at Seller’s discretion:
a. net in cash upon delivery; or
b. by deposit or transfer into a bank account designated by Seller within the term indicated by Seller after the invoice date, or, in the absence of such term, within 30 days after the invoice date; or
c. by direct debit.
Any bank charges will be passed on to Buyer.Buyer is not entitled to suspend payment of the purchase price or to deduct any amount from the purchase price without Seller’s express prior written consent.
Buyer is in default solely by the expiry of the payment term. In such case, Seller has the right to terminate the agreement with immediate effect by a single notice to Buyer (express resolutory condition). Seller shall owe Buyer no compensation whatsoever in respect of the consequences such termination may have for Buyer.
In the event of default by Buyer, Seller is entitled to charge interest at a rate of 1.5% per month, or, if higher, the statutory interest, from the due date of the invoice until the date of full payment. In case of default by Buyer, Seller is also entitled to charge any exchange rate loss incurred.
Buyer established in an EU Member State other than the Netherlands shall provide Seller in writing with its correct VAT identification number. Furthermore, Buyer shall, at Seller’s first request, provide Seller with all data and documents required by Seller as proof that the products have been delivered in an EU Member State other than the Netherlands. Buyer indemnifies Seller against all claims arising from and all adverse consequences of not, or not fully, complying with the provisions of this article.
If collection of payment requires the engagement of third parties, the resulting judicial and/or extrajudicial costs – with a minimum of 15% of the outstanding amount – are immediately due and payable and shall be borne by Buyer.
X. Retention of Title
All products delivered remain the property of Seller until Buyer has fully satisfied all claims that Seller has or will have against Buyer in respect of the products delivered by Seller, including claims relating to Buyer’s failure to perform its obligations.
As long as title has not passed, Buyer may not pledge the products delivered or otherwise grant any security rights in them. If third parties wish to levy execution on these products (or announce that they wish to do so) or otherwise seek to enforce rights over them, Buyer shall inform Seller immediately.
In exercising its rights under the retention of title, Buyer shall, upon first request and at its own expense, provide its full cooperation. Buyer is liable for all costs incurred by Seller in connection with its retention of title and related actions, as well as for all direct and indirect damage suffered by Seller.
With respect to products destined for export, as from the moment of arrival of the products in the country of destination, the proprietary consequences of the retention of title will be governed by the property law rules applicable there. Insofar as possible under such law, the following applies in addition to paragraphs 1 to 3 above:
a. In the event of Buyer’s default, Seller has the right to immediately take back the products delivered, as well as the packaging and transport materials delivered with them, and to dispose of them at its own discretion. If required by law, this implies termination of the agreement concerned.
b. Buyer has the right to sell the products in the normal course of its business. Buyer hereby already assigns to Seller all claims it acquires against a third party by such sale. Seller accepts this assignment and reserves the right to collect the claim itself as soon as Buyer fails to properly fulfil its payment obligations and, insofar as necessary, is in default.
c. Buyer has the right to process the products in the normal course of its business, whether or not together with products not originating from Seller. To the extent that the products of Seller form part of the resulting item, Seller obtains co-ownership of the new item in proportion to the share of Seller’s products in that item. Buyer hereby transfers such (co-)ownership to Seller, and Seller accepts such transfer.
d. If the applicable law requires Seller, at Buyer’s request, to release part of the agreed securities in cases where these exceed the value of the outstanding claims by a certain percentage, Seller shall comply with such request as soon as Buyer makes such request and this appears from Seller’s records.
XI. Special Warranties by Buyer to Seller
A) (International) Sanctions Measures
Buyer warrants:
a. that it complies and will continue to comply with sanctions legislation of every country that is relevant to the performance of the agreement (“Sanctions Legislation”);
b. that it will not directly or indirectly sell, transfer, deliver or otherwise make available the purchased goods to any natural or legal persons, entities, groups or (governmental) organisations that are sanctioned under Sanctions Legislation; and
c. that the obligations referred to under a) and b) of this article will likewise be imposed on each party to whom it resells or delivers goods obtained from Seller.If Buyer fails to comply, fails to comply in time or fails to properly comply with the obligations arising for it from this article, Seller is entitled, without any notice of default, to suspend performance of the agreement with immediate effect or to terminate the agreement. Seller shall not be obliged to compensate any damage thereby arising on the part of Buyer, while Buyer is fully liable for any damage incurred by Seller as a result of Buyer’s non-compliance with this article.
B) (International) Anti-Corruption Legislation
Buyer warrants:
a. that it complies at all times with the anti-corruption legislation applicable to the performance of the agreement in each country that is relevant (“Anti-Corruption Legislation”);
b. that it maintains a strict prohibition with respect to any offer to and any acceptance by employees or members of the management of Buyer of any items or services of monetary value, such as gifts, trips, entertainment or anything else, insofar as evidently intended as an inducement to act in a particular way in connection with (the conclusion of) an agreement;
c. that it will not directly or indirectly offer, promise or give anything to any political party, campaign, government body, public official or to (employees of) public institutions, state-owned enterprises, organisations, international institutions and the like, with the aim of obtaining or retaining an improper advantage in connection with the agreement or Seller;
d. that, in connection with (the performance of) the agreement or Seller, it will not offer, promise, give or accept anything from a business relation, unless there is a reasonable ground for doing so and such is reasonable in the context of day-to-day business and otherwise complies with local legislation;
e. that it will inform Seller immediately if Buyer becomes aware of any situation in connection with (the performance of) the agreement that may be in conflict with Anti-Corruption Legislation.If Buyer fails to comply, fails to comply in time or fails to properly comply with the obligations arising for it from this article, Seller is entitled, without any notice of default, to suspend performance of the agreement with immediate effect or to terminate the agreement. Seller shall not be obliged to compensate any damage thereby arising on the part of Buyer, while Buyer is fully liable for any damage incurred by Seller as a result of Buyer’s non-compliance with this article.
XII. Data Protection
Seller has the right to make identification data and data concerning payment and payment behaviour of Buyer available to Floridata, a cooperative association of wholesalers in the floriculture sector.
The data described in paragraph 1 are processed by Floridata in a database with the aim of gaining insight, on the one hand, into the markets in which the affiliated wholesalers sell their floriculture products and, on the other hand, into the payment behaviour of individual Buyers.
Data relating to the sale of floriculture products are processed into aggregated figures from which no personal data can be derived. These data are published from time to time by Floridata, whether or not via third parties.
Data relating to the payment behaviour of individual Buyers are processed for the purpose of assessing debtor risk. These data may, where applicable, constitute personal data. Data concerning payment behaviour will only be disclosed by Floridata upon specific request, insofar as that request is made by a wholesaler participating in Floridata and is aimed at limiting its own debtor risk.
If the above activities of Floridata are carried out in the future by another entity, Seller has the right to make the aforementioned data available to such entity, which will be bound by the same restrictions with regard to these data as Floridata.
XIII. Applicable Law / Disputes
All agreements and offers to which these General Terms and Conditions wholly or partly apply are governed by Dutch law. The provisions of the Vienna Sales Convention (CISG) are expressly excluded.
Disputes relating to or arising from offers and/or agreements to which these terms and conditions apply may be submitted by Buyer only to the Dutch court having jurisdiction in the district where Seller is established. Seller has the right to submit disputes to the competent court in the district where Buyer is established, or to the Dutch court in the district where Seller is established.
In deviation from paragraph 2 above, Seller and Buyer may agree to submit any dispute to an arbitration committee acting in accordance with the Arbitration Rules of the Netherlands Arbitration Institute, whose decision shall be accepted as binding by both parties.
XIV. Final Provision
In cases not provided for in these General Terms and Conditions, Dutch law likewise applies.
If and insofar as any part or provision of these General Terms and Conditions is invalid under Dutch law due to conflict with any mandatory statutory provision, the remaining provisions of these General Terms and Conditions will continue to bind the parties. In place of the invalid provision, the parties shall act as if they had agreed, at the time of entering into these terms, on a provision that corresponds to the intention of the invalid provision, or a provision that most closely approximates such intention.
October 2021