General Terms and Conditions for the Flower Wholesale Sector prepared by the Vereniging van Groothandelaren in Bloemkwekerij produkten [Netherlands Association of Flower Wholesalers] (VGB), lodged with the Chamber of Commerce and Industry in The Hague under number 1130.
I. GENERAL
1. These General Terms and Conditions shall apply to all offers made by any flower wholesaler (hereinafter referred to as the seller) and to any agreement concluded between the seller and a customer (hereinafter referred to as the buyer) and the execution thereof.
2. Any provisions that deviate from these, must be agreed in writing and shall be deemed to supplement these terms and conditions in so far as they do not replace any of the provisions of these General Terms and Conditions.
II. OFFERS AND AGREEMENTS
1. An offer shall be free of obligation, save where it contains a deadline. In the event that an offer is free of obligation and the buyer accepts it, the seller shall be entitled to revoke such offer within two working days of being notified of such acceptance.
2. An agreement shall be deemed to have been concluded at such time as the seller accepts an order in the manner that is customary in the sector.
III. PRICES
1. In general, prices shall be finalized upon the acceptance of an order. They shall be based on the applicable market price as established through supply and demand.
2. No deviation from the agreed price (or ceiling) shall be permitted without prior permission from the buyer.
3. Any price shall:
a. apply from the seller’s business premises;
b. not include Dutch VAT, packaging, import duties, other taxes or levies, the cost of loading and unloading, transport, insurance, quality control and/or plant health inspections;
c. be deemed to be stated in Euro or in an equivalent currency as referred to in the relevant invoice and translated at the relevant spot rate.
IV. DELIVERY AND DELIVERY TIME
1. The seller shall be required to deliver the agreed quantity, save where force majeure necessitates a reduction thereof.
2. The seller shall be required to notify the buyer of any situation of force majeure with immediate effect, and shall then be entitled to deliver a smaller quantity.
3.
a. The seller’s warehouse or business premises shall serve as the place of delivery.
b. Notwithstanding what is provided for in clause (a), where a consignment is transported by a means of transport belonging to the seller, the destination shall serve as the place of delivery.
c. Notwithstanding what is provided for in clause (a), where the services of a shipping agent and/or transporter are engaged, the point of departure of such contracted third party shall serve as the place of delivery.
4. Prepaid delivery shall only apply if and in so far as this is agreed and is stated by the seller on the relevant invoice.
5. Save where expressly agreed otherwise, any specified delivery time shall never be deemed to be an essential deadline. In the event of untimely delivery the seller shall therefore need to be notified in writing that he is in default.
6. In the event that the buyer fails to collect the products that have been ordered, at the agreed place and time, he shall bear any risk of quality loss which may arise pursuant to storing them. The products that have been ordered, will be stored at his disposal, risk and expense. Nevertheless, should the buyer fail to collect the products upon the expiry of a limited period of storage which may be deemed to be reasonable given the nature of the products in question, and the risk that their quality will diminish and/or that they will perish does not permit of any other alternative, the relevant order shall be deemed to have been cancelled by the buyer. In this case the seller shall be entitled to sell the relevant products. If in default, the buyer shall be liable for any difference in price that may arise pursuant to such sale, as well as any other additional costs and loss incurred by the seller.
7. The seller reserves the right not to fulfill any order, if the buyer in question has failed to effect payment for any previous delivery within the agreed term of payment. The seller shall not be liable for any loss suffered by the buyer resulting from such non-delivery. The buyer must be given timely notice of the exercise of this right.
V. FORCE MAJEURE
1. Where it is impossible to effect delivery as agreed due to force majeure, the seller shall have a duty to notify the buyer to this effect by fax, telex, telegram or telephone as soon as possible subject to written confirmation of the message in question.
2. In the event of force majeure, the seller shall, following consultation with the buyer, be entitled to cancel the agreement in question or to suspend delivery until such time as the situation of force majeure ceases to exist.
3. In the event that delivery is suspended and is delayed for a period in excess of two days, the buyer shall be entitled to give written notice that he deems the relevant agreement of sale to have been cancelled.
4. Force majeure shall be deemed to refer to any circumstances beyond the immediate control of the seller, as a result of which one can no longer reasonably require compliance with the agreement in question, such as war, the threat of war, strikes, fire, extreme weather or government measures.
VI. QUALITY AND HEALTH
1. Any products that are to be delivered, must comply with the ordinarily applicable quality standards for the products in question.
2. Furthermore, any products scheduled to be exported, must comply with government plant health requirements that apply to the relevant flower cultivation products in the country of import. Any deficiencies in this respect shall not entitle the buyer to compensation or to cancel the agreement in question, save where he notifies the seller of any special plant health requirements beforehand or at the time the relevant agreement is concluded.
VII. PACKAGING
1. Packaging will be effected in the manner that is customary in the flower and plant wholesale trade, and the seller shall determine same in accordance with sound commercial practice, save where otherwise agreed.
2. One-off packaging shall be charged at cost.
3. Multiple-use packaging and durable materials (cardboard boxes, containers, stacking trolleys, and so forth) which remain the seller’s property, shall also be charged at cost and must be returned. The buyer shall levy a charge for the return transport costs separately. If the materials in question are returned in good order within 30 days after the relevant invoice date, credit shall be given for the costs charged less the amount agreed for their use, where applicable.
4. With regard to any durable packing materials (stacking trolleys, containers and so forth) which have been lent to the buyer, in the event that the latter fails to return the relevant materials, the seller reserves the right to charge him for the cost thereof and to recover any additional loss from the buyer which he may have caused by virtue of his default.
5. Where a deposit is charged, this amount shall be paid once the relevant materials have been returned in good order. The buyer shall levy a charge for the cost of the return transport.
VIII. LOADING AND TRANSPORT
1. Loading and dispatch shall be performed effectively.
2. Where the buyer does not stipulate the means of transport, the seller shall opt for the most common manner.
3. The buyer shall be charged for the relevant transport costs.
4. In the event that goods are dispatched using his own means of transport, the seller shall be liable for any loss that may occur until such time as the buyer takes delivery of the products in question.
5. Notwithstanding the provisions of clause (4), where the services of a shipping agent are engaged, the seller shall only be liable for any loss that may arise until the agent in question takes delivery of the relevant products.
IX. COMPLAINTS
1. The seller must be notified by fax, telex, telegram or telephone of any complaint in respect of a visible defect in products that are delivered, immediately after it is noticed or at any rate within 24 hours of receipt. The buyer shall be required to provide written confirmation of telephonic notification within three days of receiving the products in question. Furthermore, the buyer or person who takes delivery of these products, shall be required to make note of the complaint on the relevant transport documents, so as to confirm that the complaint arose at the time the products were delivered.
2. Any complaint pertaining to a hidden defect in products that are delivered, must be communicated to the seller immediately after it is noticed, but written notice must at any rate be given to the seller in such timely fashion that the latter will be able to verify the accuracy of the complaint in question on-site (or to have this done) and/or to collect the consignment in question.
3. At the very least, a complaint shall include the following:
a. a detailed and accurate description of the defect;
b. a statement of any additional facts, which may lead one to conclude that the consignment in question is identical to the products which the buyer has declared to be unfit.
4. Any complaint pertaining to part of the products that are delivered, shall not constitute grounds for the rejection of the entire consignment in question.
5. Upon the expiry of the aforementioned periods, the buyer shall be deemed to have approved the relevant consignment or invoice. In this case the seller shall not consider any complaint.
X. LIABILITY
1. Any payment made by the seller by way of compensation for loss suffered by the buyer, shall not exceed the value of the invoice pertaining to the consignment to which the relevant complaint relates, save where the buyer can prove that the loss in question was due to a deliberate act or omission, or gross negligence on the part of the seller himself or any of the latter’s managerial staff.
2. The goods supplied by the seller are intended for ornamental purposes and are not to be taken, save where this is expressly stated in connection with the production in question. The products may have harmful effects on people and animals if used incorrectly, if they are consumed, or in the event that one touches them and/or one is overly sensitive to them.
3. Every year products which are known to the VBN to contain substances which may be harmful to one’s health, are listed in the VBN code book. The buyer shall be required to state the risks involved in respect of any unit that is to be sold.
4. The buyer shall be required to communicate the information referred to in clauses (2) and (3) to his customers and to impose on them a duty to inform consumers accordingly.
XI. PAYMENT
1. Payment must be effected as follows, such at the seller’s discretion:
a. cash on delivery; or Payment in advance (you get credit for this and can purchase up to that amount)
b. by depositing or transferring the relevant amount to a bank or Postbank account designated by the seller for this purpose within 14 days of the invoice date.
2. The buyer shall not be entitled to deduct an amount from the purchase price which he is required to pay, on the grounds of any claim that he may have. The buyer shall not be entitled to suspend payment of the purchase price he is required to pay, on the grounds of any complaint if the seller shows that there is no justification for the complaint in question.
3. The buyer shall be in default merely upon the expiry of the agreed term of payment and no separate notification of default shall be required for this purpose.
4. In the event that the buyer is in default, the seller shall be entitled to charge him interest amounting to 1.5% per month as of the day due for payment of the invoice in question until that on which the amount is paid in full. Furthermore, where the buyer is in default, the seller shall be entitled to charge him for any resultant increase in the relevant foreign exchange rate.
5. Should it be necessary to engage the services of a third party to obtain payment, the costs involved – both judicial and extrajudicial – shall be borne by the buyer. This shall entail that a buyer who is in default, shall be liable for an immediately payable sum amounting to 15% of the relevant invoice amount or the actual collection costs in respect of any expenses occasioned by his default and this shall in no way diminish the costs of any legal proceedings to be paid by the buyer.
XII. RETENTION OF TITLE
1. Any product that is delivered, shall remain the property of the seller until it is paid for in full.
2. In the event of untimely payment of one or more invoices that have already fallen due, and if the actual circumstances of the situation in question and a reasonable assessment of the parties’ interests do not permit of any other alternative, the seller shall be entitled to recover the products that have been delivered together with any packaging and other durable materials (cardboard boxes, containers, stacking trolleys and so forth) which he has provided, and to remove them from the place where they are stored.
XIII. AVAILABLE
1. If a product in your order is not available it will be replaced by an equivalent product
XIV. GOVERNING LAW AND DISPUTES
1. Any agreement to which these General Terms and Conditions apply in whole or in part, shall be governed by and construed in accordance with the law of the Netherlands.
2. Any dispute (even one which is only designated as such by one of the parties) pertaining to or arising pursuant to an agreement which is concluded between the seller and a buyer whose registered office is situated in a foreign country, and which is governed by these General Terms and Conditions, may be resolved by a Dutch court of law that has jurisdiction in the area in which the seller has his registered office.
3. Notwithstanding the provisions of clause (2), the seller and the buyer, irrespective of whether the latter has his registered office in a foreign country or not, shall be entitled to agree to submit any dispute to an arbitration tribunal, whose decision shall be accepted as binding by both parties.
XV. GIFT CARDS AND VOUCHERS
1. The provisions of this article apply to gift cards offered and issued by GET-FLOWERS.EU.
2. The nature, value, duration and / or any applicable other specific conditions of use are stated on the gift card or voucher.
3. The period of validity of the gift card or voucher is stated on / with the gift card or voucher. After the expiry date, the gift card or voucher is no longer valid.
4. Gift cards and vouchers can only be exchanged for products supplied by GET-FLOWERS.EU.
5. The gift card or voucher or its residual value cannot be exchanged for money.
XVI FINAL PROVISIONS
1. The law of the Netherlands shall also apply in any case which is not provided for by these General Terms and Conditions.
2. If and in so far as any part or provision of these General Terms and Conditions may appear to contravene any mandatory provision of national or international law, it shall be deemed not to have been agreed and the rest of these General Terms and Conditions shall remain binding on the parties.
December 1992