General terms and conditions

Royal Trade Association for Nurserystock and Bulbs (ANTHOS) GENERAL CONDITIONS OF SALE AND DELIVERY
GENERAL CONDITIONS OF SALE AND DELIVERY

1. Applicability
1.1. These terms and conditions only apply to agreements with regard to which one of the parties is a member of Anthos at the time of conclusion of the agreement, which, within the framework of these general terms and conditions, is also deemed to include other companies which are directly or indirectly affiliated to an Anthos member company (e.g. sister, subsidiary or parent companies of the member).
1.2. If an agreement refers to these terms and conditions, and this agreement only involves non-members, the terms and conditions set out below do not apply and are also in breach of the law and copyright, unless Anthos has granted written consent.
1.3. All offers made by the seller and all purchase agreements concluded with him and the execution thereof are governed by these terms and conditions.
1.4. The applicability of other conditions including the general conditions applied by the buyer is expressly excluded.
1.5. A deviation from these terms and conditions may only be invoked if the seller has expressly agreed to it in writing and shall relate exclusively to the relevant agreement.
1.6. Insofar as these general terms and conditions are also drawn up in a language other than Dutch, the Dutch text shall always be decisive in the event of differences.
1.7. In these terms and conditions, ‘in writing’ means by letter, fax or electronically.

2. Offers and conclusion of agreement
2.1 All offers and quotations made by the seller are without obligation.
2.2 An agreement will not come into effect until the seller has confirmed the order in writing and also
has confirmed the order in writing and any agreed payment security, including an irrevocable (confirmed) letter of credit, has also been accepted by the seller in writing. Every agreement is entered into by the seller under the resolutive condition that the buyer, solely at the discretion of the seller’s credit insurer, proves to be sufficiently creditworthy for the financial performance of the agreement.
2.3 Any subsequent additional agreements or amendments as well as verbal promises made by
2.3 Any supplementary agreements or amendments made at a later date, as well as verbal promises made by the Seller’s staff or made on its behalf by its agents or other representatives working for it, shall only bind the Seller from the moment they are confirmed by it in writing.

3. Prices
3.1 All prices for the goods shall be fixed in the agreed currency, exclusive of
turnover tax and are based on ex works, (place of business), the Netherlands (EXW, Incoterms 2010) unless otherwise agreed in writing.
3.2 If after the order confirmation but before delivery of the products one or more of the
cost price determining factors undergo a change, the Seller reserves the right to adjust the agreed prices accordingly.
3.3. The costs related to transport, packaging, insurance and inspection by the NVWa and/or Naktuinbouw will be at the Buyer’s expense. All levies and/or taxes that are or will be payable on account of the agreement concluded by the seller with the buyer, both directly and indirectly, will be exclusively and fully at the buyer’s expense and may not be deducted from the amounts owed to the seller.
3.4 If the seller and the buyer agree that the price is in a currency other than the euro,
then the euro exchange rate on the date of the order confirmation shall apply.

4. Payment
4.1 Unless the parties have agreed otherwise in writing, payment for the goods
sold by the Seller shall be made within 30 days of the invoice date in the agreed currency.
4.2 The payment date shall be the value date on which the seller receives the payment.
In the event of payment by bank, the date of payment shall be the day on which the bank account of the seller is credited.
4.3 The buyer is not entitled to any deduction, suspension or payment discount, and any
reliance on set-off is expressly excluded unless otherwise agreed. If the payment term is exceeded, the buyer shall be in default by operation of law as from the expiry of the payment term. The seller shall be entitled to charge statutory interest for commercial transactions from the due date, while all costs relating to the collection shall also be borne by the buyer, both judicial and extrajudicial, the latter being set at a minimum of 15% of the amount to be collected, such with a minimum of 250 euros.
4.4 In the event that an order is carried out in parts, the seller will be entitled to demand payment for the partial deliveries before the partial deliveries are
the partial deliveries before making the other partial deliveries.
4.5 Upon or after entering into the agreement, the seller will be entitled to require security from the buyer before performing or continuing to perform.
to demand security from the buyer that both payment and other obligations under this agreement will be fulfilled. Refusal by the buyer to provide the required security shall entitle the seller to suspend its obligations and shall ultimately entitle it to dissolve the agreement in full or in part without notice of default or judicial intervention, without prejudice to its right to compensation for any loss suffered by it.
4.6 The seller is entitled, despite other destination of the payment by the buyer, to offset payments
first against older debts. If costs and interest have already arisen, the payment shall first be offset against the costs, then against the interest and only then against the principal sum.

5. Delivery
5.1 Unless otherwise agreed in writing, all deliveries shall take place ex works
(place of business), the Netherlands (EXW, Incoterms 2010).
5.2 Although the stated delivery time will be observed as much as possible, this delivery time is an approximation only and can be changed at any time.
5.2 Although the stated delivery time will be observed as much as possible, this delivery time is approximate only and can never be regarded as a strict deadline. The Seller will not be in default with regard to the delivery time until it has been given written notice of default by the Buyer, the latter has given it the opportunity to deliver within a reasonable term and the Seller has failed to do so.
5.3 The agreed delivery period will commence as soon as an agreement has been concluded in
in accordance with article 2.2.
5.4 The seller will not be liable for damage as a result of late delivery, if and
5.4 The Seller will not be liable for damage as a result of late delivery if and insofar as such late delivery is due to circumstances beyond the Seller’s control and risk, including non-performance or late performance by suppliers.
5.5 Non-compliance (on time) with any payment obligation by the Buyer will suspend the Seller’s
delivery obligation of the Seller.
5.6 If no delivery terms have been agreed and the delivery takes place on call,
then the seller shall be entitled to make autumn deliveries before 15 December of the relevant year and spring deliveries after 1 April.
5.7 Roots must be delivered by 15 April and potted and container plants by 15 May.
Deviations must be notified in writing. For deliveries on demand, the seller always has the right to deliver root ball and pot plants after 15 May. For agreements concluded after 15 May, the seller is entitled to deliver within 14 days.
5.8 In the event of a request to postpone the autumn delivery until after 15 December, the price will be increased by 3%.
5.9 In the event of a request to postpone the spring delivery until autumn, all costs incurred to make this possible will be borne by the seller.
costs incurred to make this possible shall be borne by the buyer. In addition, the buyer will already be charged a minimum of 50% of the invoice amount at that time.
5.10 The seller reserves the right to deliver the goods in parts, in which case the (payment) conditions described in article 4 also apply to each partial delivery.

6. Force majeure
6.1 In case of force majeure – as such are considered, inter alia, crop failure, viruses,
natural disasters, strikes, fire, import and export impediments – or in the event of other circumstances as a result of which compliance with the agreement cannot be demanded from the seller or cannot be demanded in time, the seller shall be entitled, at his discretion, without judicial intervention and without being obliged to pay any compensation, either to dissolve the agreement in part or in full or to suspend the performance of this agreement by means of a single written notification until such time as the situation of force majeure has ended.
6.2 If the agreement has already been partially executed by the seller, the buyer shall pay the selling price of the goods delivered.

7. Complaints
7.1 The buyer is obliged to examine the goods upon delivery for visible and/or immediately
observable defects. As such are considered all defects that can be detected by normal sensory perception or a simple random check. Furthermore, the buyer is obliged to check whether the delivered goods are in accordance with the order in other respects as well. By not complying with the obligation to check, the buyer loses all possible claims against the seller.
7.2 If the delivered goods deviate less than 10% in number, quantity and weight from what has been
agreed, the buyer will nevertheless be obliged to accept the delivered goods.
7.3 Complaints regarding the quality and quantity of the delivered goods must be submitted in writing and no later than eight
submitted no later than eight calendar days after delivery. Defects that can only be discovered at a later stage (non-visible defects) must be reported to the seller immediately after discovery, but in any event before the end of the first growing season following delivery. Once these periods have been exceeded, the buyer will be deemed to have approved the delivered goods and complaints will no longer be considered.
7.4 The complaint must contain a description of the defect and the seller must at first
request be given the opportunity to investigate the complaint.
The buyer must allow the seller to have an inspection of the goods in question carried out by an expert or an independent inspection body. If the complaint is declared founded by the expert, the costs of the inspection shall be borne by the seller. If the complaint is declared unfounded, the costs shall be borne by the buyer.
7.5 If the buyer has timely reported a complaint to the seller and the seller has acknowledged the complaint, the seller shall, at his discretion, only be obliged to deliver what is missing, replace the delivered goods or refund a proportionate part of the purchase price.
7.6 The submission of a complaint shall not suspend the buyer’s payment obligation, unless the seller expressly agrees to such suspension.
7.7 Returning the goods will be at the expense and risk of the buyer and can
only take place after the prior written consent of the seller.

8. Liability
8.1. The seller will never be liable for the regrowth or flowering of the delivered goods. It shall at all times be the buyer’s responsibility to assess whether the conditions, including climatic, are suitable for the goods.
8.2. The seller guarantees the authenticity of species of the plants delivered by him.
8.3. Plant names are described according to the Nomenclature of Woody Crops and the Nomenclature of Perennial Plants published by PPO in Lisse, the Netherlands.
8.4 Subject to statutory liability pursuant to mandatory statutory provisions and
except in case of intent or gross negligence, the seller shall never be liable for any damage suffered by the buyer. Liability for indirect damage, consequential damage, immaterial damage, trading loss, environmental damage, damage due to loss of profit or damage as a result of liability vis-à-vis third parties is furthermore expressly excluded.
8.5 If and insofar as, despite the provisions in article 8.4, the Seller is
8.5 If and insofar as, despite the provisions in article 8.4, any liability rests with vendor, for any reason whatsoever, this liability shall be limited to the amount equal to the net invoice value of the goods concerned.
8.6 The buyer shall indemnify the seller against third-party claims for compensation for damage for which the seller is not liable under these terms and conditions.
for which vendor is not liable under these terms and conditions.
8.7 The Buyer indemnifies the Seller against any third-party claims for damages
8.7 The Buyer indemnifies the Seller against any third-party claims for damage in connection with products delivered by the Buyer to such third parties, unless it is established by law that such claims are a direct consequence of gross negligence or intent on the part of the Seller and the Buyer moreover proves that it cannot be blamed in any way.
8.8. If latent infections are present in the plant, this will be regarded as a non-attributable shortcoming on the part of the Seller.
8.8. If latent infections are present in the plant, this will be regarded as a non-attributable shortcoming on the part of the Seller, unless the Buyer demonstrates a) that there was intent or gross negligence on the part of the Seller which caused these latent infections or b) that the Seller was aware of these latent infections prior to the purchase but nevertheless did not inform the Buyer thereof.

9. Cancellation
9.1. The seller has the right to cancel an order if, at the time of delivery, the buyer has not yet fulfilled his earlier payment obligations towards the seller or other creditors. The seller may also exercise this right if the information on the buyer’s creditworthiness is deemed insufficient by the seller. The buyer cannot derive any rights from such cancellations and the seller can never be held liable by the buyer.
9.2. Cancellation of an order by the buyer is in principle not possible. If the buyer nevertheless cancels all or part of an order, for whatever reason, the seller will only have to accept this if the goods have not yet been handed over to the carrier for shipment and on condition that the buyer pays a cancellation fee that is at least equal to 30% of the invoice value of the cancelled goods plus VAT. In that case the seller shall also be entitled to charge all costs incurred and to be incurred up to that time (including costs of preparation, care, storage and the like) without prejudice to the seller’s right to compensation for loss of profit and other losses.
9.3. The buyer will be obliged to accept the purchased goods at the time they are made available to him. If the buyer refuses to accept them, the seller shall be entitled to sell these goods elsewhere and the buyer shall be liable for the price difference as well as for all other costs incurred by the seller as a result, including storage costs.

10. Retention of title
10.1. Ownership of the goods delivered by the seller shall not pass to the buyer until full payment of all amounts invoiced by the seller with any interest, penalties and costs as well as all claims for failure to perform the buyer’s obligations under this or other agreements. Issuance of a cheque or other commercial paper shall not constitute payment in this regard.
10.2 The seller is entitled to take back the sold goods immediately if the buyer fails to fulfil his (payment) obligations in any way. In that case, the buyer will be obliged to grant the seller access to its premises for that purpose.
10.3 The buyer must store the goods subject to retention of title separately from the other goods, in order to be able to continue to distinguish the seller’s goods.
10.4 As long as the delivered goods are subject to retention of title, the Buyer may not use them outside the scope of its normal business operations.
alienate, encumber, pledge or otherwise bring them under the control of third parties outside its normal business operations.
However, the buyer shall not be permitted to alienate the goods in the ordinary course of business at the time when the buyer has applied for a moratorium or the buyer has been declared bankrupt.

11. Sanctions
11.1 Buyer warrants that it complies and will continue to comply with all obligations and restrictions resulting from all applicable sanctions regulations of the United Nations, the United States of America, the European Union, the Netherlands and of any other country that is or may become relevant for the execution of the concluded agreement (“Sanctions Legislation”).
11.2 In particular, the Buyer warrants that it will not directly or indirectly sell, transfer, deliver, or otherwise make available the purchased goods to (legal) persons, entities, groups or (governmental) organisations sanctioned under Sanctions Legislation.
11.3 The buyer shall ensure that all obligations under this article will be imposed equally on any party to whom it resells or delivers goods it has procured from the seller.
11.4 If the buyer fails to comply, fails to comply on time or fails to comply properly with its obligations under this article, the seller shall have the right, without notice of default, to suspend or terminate the agreement with immediate effect without any obligation to pay damages on the part of the seller and with full liability to pay damages on the part of the buyer to the seller, all at the seller’s discretion.

12. Anti-Corruption
12.1 The Buyer shall at all times comply with all obligations and restrictions resulting from all applicable anti-corruption regulations of the United States of America, the United Kingdom, the Netherlands and of any other country that is or may become relevant to the performance of the concluded agreement (“Anti-Corruption Legislation”).
12.2 Any offer to and acceptance by employees or members of the customer’s management of money, gifts, presents, travel, entertainment or other consideration relating to the agreement or the seller which is intended to, or may be perceived as, inducement to act in a particular manner is strictly prohibited.
12.3 The customer shall not directly or indirectly offer, promise or give anything to any political party, campaign, government agency, official or to (employees of) public institutions, state enterprises, organisations, international institutions for the purpose of obtaining or retaining business or any other improper advantage in connection with the agreement or the seller.
12.4 In connection with the Agreement or the Seller, the Buyer shall not offer, promise, give or accept anything from a business relationship unless there is fair ground for doing so and it is reasonable in the ordinary course of business and otherwise complies with local laws.
12.5 The buyer shall immediately inform the seller if it learns of any situation in the performance of the contract that may be in breach of Anti-Corruption Laws.
12.6 If the buyer does not, does not timely or does not properly fulfil its obligations under this article, the seller shall have the right to suspend or terminate the agreement with immediate effect without notice of default and without any obligation to pay damages on the part of the seller and with full liability for damages on the part of the buyer towards the seller, all at the seller’s discretion.

13. Dissolution and suspension
13.1 In the event that the buyer fails to comply, fails to comply on time or fails to comply properly with the obligations ensuing for it from the concluded agreement, or if there is a well-founded fear of this, as well as in the event of an application for a suspension of payments, bankruptcy or liquidation of the buyer’s business and in the event of its death or dissolution or termination of the buyer’s business, the seller will be entitled to suspend the agreement. dissolution or termination of the buyer, if the buyer is a company, or in the event of a change in the form of undertaking or in the management of the company or in the contribution of the company’s activities, the seller will be entitled, without notice of default or judicial intervention being required, to suspend the agreement for a reasonable term or to dissolve the agreement without any obligation to pay damages.
13.2 The seller’s claim in respect of the part of the agreement already performed, as well as the damage arising from the suspension or termination, including loss of profit, shall be immediately due and payable.

14. Intellectual property rights
14.1. The Seller reserves all rights the Seller has in the field of intellectual property in connection with goods delivered by the Seller.
14.2 In those cases in which it is apparent from the catalogue used by the seller or from the agreement concluded by the parties that a variety is protected under plant breeders’ rights – which is indicated by the statement (R)/PBR after the name of the variety in question – the buyer will be bound by all obligations relating to that right. Violation of this provision shall result in the buyer being liable for all damage arising therefrom for the seller and third parties.

15. Conflict with statutory provisions
Should any provision of these General Terms of Sale and Delivery be inapplicable or contrary to public policy or the law, only the provision in question shall be deemed unwritten, but the terms and conditions shall otherwise remain in full force and effect.
The Seller reserves the right to change the challenged provision into a legally valid one.

16. Competent court / applicable law
16.1 All disputes, even if only designated as such by one of the parties, will be subject to the opinion of the court with jurisdiction within the Seller’s area of establishment, without prejudice to the Seller’s right to submit the dispute, if so desired, to another competent court.
16.2 The provisions of article 14.1 are without prejudice to the seller’s rights to obtain a decision by arbitration by the International Chamber of Commerce in accordance with the Arbitration Regulations of the International Chamber of Commerce, by a single arbitrator. The place of arbitration shall be Amsterdam, the Netherlands. The arbitration proceedings shall be conducted in the English language.
16.3 All offers made and quotations submitted by the seller and all agreements concluded between the buyer and the seller shall be governed exclusively by Dutch law. The application of the Vienna Sales Convention is expressly excluded.

Version Feb 2019

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