General Terms and Conditions of Bloemendaal Young Plants
Art.1 Definitions
1.1 In these general terms and conditions, the following terms shall have the meanings set out below:
1. Bloemendaal: Bloemendaal Young Plants V.O.F., Henegouwernesse 20, 2741 LJ Waddinxveen, Chamber of Commerce number 85474037, the user of these general terms and conditions.
2. CC Container: officially labelled containers that the Pool Organisation Container Centrale Benelux BV. puts into circulation
3. Single-use packaging: packaging intended for single use, for example, Danish boxes, plastic bags and trays.
4. Buyer: a Buyer who purchases from Bloemendaal.
5. Multi-use packaging: packaging that can be used multiple times, for example, crates, pallet boxes and pallet bases.
6. Agreement: the agreement between Bloemendaal and the Buyer.
7. Stichting Hulpmaterialen (Auxiliary Materials Foundation): the foundation appointed by the Council for Nurseries (Raad voor de Boomkwekerij), which has the task of laying down rules to which materials, packaging, etc., used in nurseries must comply with.
8. Freshly potted: plants that have not been in a pot for at least one growing season.
Art. 2 Applicability
2.1. The provisions of these general terms and conditions apply to all current and future quotations and agreements between Bloemendaal and a Buyer. Order confirmations from a Buyer that contain stipulations that deviate from, or overrule, these general terms and conditions, will be considered not to have been agreed, unless both parties have agreed to these stipulations in writing.
2.2. These terms and conditions also apply to all agreements with Bloemendaal, for the execution of which the involvement of third parties is required.
2.3. If one or more provisions of these General Terms and Conditions prove to be null and void or are nullified, the remaining provisions of these General Terms and Conditions shall continue to apply. Bloemendaal and the Buyer will then consult one another in order to agree on new provisions to replace the null and void or nullified provisions, whereby if and insofar as possible, the purpose and the purport of the original provision is taken into account.
2.4. Bloemendaal is entitled to appoint one or more representatives to act as its authorised representative when agreements are entered into. Acceptance of agreements entered into by a representative on behalf of Bloemendaal is subject to the representative having satisfactory power of attorney.
Art. 3 Quotations and samples
3.1 Unless agreed otherwise, conventional and irrevocable quotations are obligation free and valid for three working days, counting from the day on which the prospective Buyer receives the quotation. If the obligation is irrevocable, the consignment mentioned in the quotation will be reserved until the date by which the prospective Buyer must inform Bloemendaal of its decision. Quotations shall be deemed to have been withdrawn if the prospective Buyer does not respond on time. Any changes to the agreement take effect through an offer and acceptance thereof.
3.2 Delivery times are indicative and, where exceeded, shall not entitle the Buyer to dissolve the agreement or to seek damages, unless explicitly agreed otherwise.
3.3 At the prospective Buyer’s request, Bloemendaal shall provide a sample free of charge, showing the name of the plant, quality and size. If a sample has to be delivered to the prospective Buyer, Bloemendaal will charge for transport.
3.4 Unless otherwise stated, products will have been in the pot for a whole growing season. When products are propagated by tissue culture, are grown indoors, or sold as a ‘freshly potted’ plant, this will be stated.
3.5 A combined quotation does not require Bloemendaal to deliver a portion of the products listed in the quotation for a corresponding portion of the price.
Art. 4 Conclusion of the agreement
4.1 The agreement shall be concluded once the Buyer has accepted the quotation issued by Bloemendaal, including if this acceptance deviates from the quotation on minor points. If required, the Buyer will receive an order confirmation by email. If, however, the Buyer’s acceptance deviates on material points from the quotation, the agreement shall only be concluded if Bloemendaal has explicitly agreed to these deviations in writing, or if Bloemendaal implements the (deviating) agreement.
Art. 5 Prices and payment
5.1 All prices charged by Bloemendaal are unit prices and include all costs incurred for the delivery of a consignment. When labels are prescribed by the Quality Standards Committee, the costs for these labels and the pot or container are included. If the Buyer wishes to receive a consignment without a label, this must be stated on the order confirmation and on the call-off message.
5.2 All prices exclude: VAT, packaging, unforeseen inspection costs, transport costs and other unforeseen costs, including labels and/or stickers not included under the compulsory labels referred to in article 5.1.
5.3 Unless stated otherwise on the invoice, the payment deadline is 30 days after the invoice date and in a manner to be indicated by Bloemendaal. The payment deadline is a firm date.
5.4 If the Buyer fails to pay an invoice within the agreed term, the Buyer shall be in default by operation of law. The Buyer will then be liable to pay contractual interest of 1.5% a month. If the Buyer is not acting within the capacity of an occupation or business, the Buyer owes contractual interest of 0.7% a month.
5.5 A Buyer who acts within the capacity of an occupation or business is never entitled to set-off amounts that it owes to Bloemendaal. Objections to the amount stated in an invoice do not suspend the payment obligation.
5.6 If the Buyer is in default or fails to perform its obligations, or to perform these in a timely manner, then all reasonable costs incurred in order to obtain an out-of-court settlement shall be borne by the Buyer. The out-of-court collection costs amount to 15% of the outstanding invoice amount, with a minimum of € 175.00. If the Buyer is not acting within the capacity of an occupation of business, the out-of-court costs will be calculated in accordance with the statutory graduated scale for out-of-court collection costs.
5.7 In the event of liquidation, bankruptcy, prejudgement attachment or attachment in execution proceedings, or suspension of payment on the part of the Buyer, Bloemendaal’s claims against the Buyer are due and payable immediately.
5.8 Bloemendaal is entitled to use the payments made by the Buyer first to settle any costs, then for the interest that is due and, finally, to reduce the principal sum and the current interest. Without thereby being deemed to be in default, Bloemendaal can refuse an offer of payment, if the Buyer indicates a different order of allocation. Bloemendaal can refuse full payment of the principal sum if this payment does not include the interest due and accrued and the costs.
5.9 As long as the Buyer has not or not fully complied with its obligations vis-a-vis Bloemendaal, Bloemendaal shall remain the owner of the delivered plants. As long as the delivered plants remain the property of Bloemendaal, the Buyer shall be deemed to keep these plants exclusively for Bloemendaal and it may not sell, pledge, transfer the ownership thereof as security, or grant third parties any other rights thereto. The Buyer is furthermore obliged to immediately inform Bloemendaal if the plants that have not yet been paid for are seized by garnishment, or if other measures are taken in respect of those plants.
5.10 If on any due date the Buyer has not fulfilled its payment obligations, Bloemendaal may ask the Buyer to provide security for the fulfilment of the payment obligations. Moreover, in that case, when entering into a new purchase agreement, Bloemendaal may immediately ask that sufficient security is provided. If the security is not provided within 14 days, Bloemendaal is entitled to cancel all current agreements and suspend further delivery, without prejudice to the right to recover the damage suffered, or to be suffered, as a result of this from the Buyer.
Art. 6 Call off and delivery
6.1 Call-off orders should preferably be sent by email. If products are called off by telephone, at Bloemendaal’s request, the Buyer should immediately confirm this by email to Bloemendaal.
6.2 A call-off order should be sent by the Buyer as soon as possible, to enable Bloemendaal to take the necessary measures in good time. The Buyer shall inform Bloemendaal on which date the called-off plants should be delivered.
6.3 Unless agreed otherwise in writing (by email), Bloemendaal shall deliver the called-off plants (or shall make these available if the transport takes place through a third party) within 2 working days of receipt of the Buyer’s call-off order. If the call-off order reaches Bloemendaal after 12:00 hours, the delivery period will be increased by one day. In terms of calculating the delivery times, call-off orders received by Bloemendaal on a Saturday, Sunday or a generally recognised public holiday, shall be deemed to have been received on the first subsequent working day.
6.4 When a call-off is purchased, it should preferably be indicated whether this is for spring or autumn delivery. The plants purchased for autumn must have been delivered by 30 December. The plants purchased for spring, must have been delivered by 15 May. If delivery is not taken of the plants before the dates indicated in this article, Bloemendaal shall provide the Buyer with written notice of default (by email) no later than 5 working days after the aforementioned dates. If the Buyer does not call off and take delivery of the plants within 2 working days of the notice of default, Bloemendaal has the right to immediately deliver the plants, unless an agreement is reached about an alternative.
6.5 Bloemendaal shall determine the method of delivery unless, when calling off the plants, the Buyer informs Bloemendaal how it would like the shipment to be arranged. In all cases, the costs associated with shipment shall be borne by the Buyer.
6.6 Upon delivery, the consignment is accompanied by a delivery note. If the Quality Standards Committee has stipulated that certain plants may only be delivered if these are provided with labels or designations of a similar nature – insofar as these have been approved by the Auxiliary Materials Foundation - Bloemendaal will comply with these requirements. If the labels approved by the Auxiliary Materials Foundation are not used, other labels can be used following consultation.
6.7 Unless agreed otherwise, for delivery purposes, only packaging will be used that has been approved by the Auxiliary Materials Foundation, alternatively an auction container of Flora Holland may be used. If the call-off is in single-use packaging, the associated costs shall be borne by the Buyer in accordance with the auction container price list of Flora Holland, unless the Buyer returns this packaging, undamaged, within 8 working days.
6.8 When the purchased plants are delivered using Bloemendaal’s own transport, if delivery is in multi-use packaging (as recommended by the Auxiliary Materials Foundation) a sufficient quantity of equivalent multi-use packaging must be present at the Buyer, in an easily accessible location, and exchange must take place, unless agreed otherwise. If products are returned by a transport company, before the delivery takes place, further agreements are reached between Bloemendaal and the Buyer concerning the costs of return and the period of time within which the return must take place. The returned packaging must be accompanied by a docket indicating the number of items and a description of the packaging.
6.9 If the Buyer personally collects plants from Bloemendaal, or arranges for these to be collected, exchange also applies unless agreed otherwise. If as a result of force majeure, an exchange cannot take place, this packaging will be charged for in accordance with the transfer prices determined by the Auxiliary Materials Foundation.
6.10 If Bloemendaal arranges for the plants to be delivered by a transport company, the costs of multi-use packaging will be charged, in accordance with the transfer prices determined by the Auxiliary Materials Foundation.
6.11 If plants are delivered on CC containers, at the time of delivery, the CC containers have to be exchanged, or within one working day of delivery, have to be rebooked on Bloemendaal’s Flora Holland (customer) number.
6.12 If plants cannot be sent or delivered because of frost, Bloemendaal shall immediately inform the Buyer of this. Following this notification, Bloemendaal will keep the plants available for the Buyer. The reporting by the Royal Dutch Meteorological Institute (KNMI) based in De Bilt will determine whether Bloemendaal is legitimately unable to deliver on account of frost.
6.13 From a risk point of view, Bloemendaal is responsible for the sold plants, which may or may not be hardy, until the time of delivery to the Buyer. The risk associated with the sold products transfer to the Buyer as from the time of delivery to the Buyer’s company, if it has been agreed that Bloemendaal will arrange transport; as from the time of delivery to the Buyer on the vehicle, if it has been agreed that the Buyer will arrange transport of the sold products. If Bloemendaal delivers plants to a transhipment site at the Buyer’s request, the plants are present at this site at the Buyer’s risk.
7. Quality and authenticity guarantee
7.1 Bloemendaal endeavours to deliver consignments that are practically free from diseases, harmful insects, weeds, liverwort and dead branches. When ascertaining the size, potted plants must be measured from the bottom of the pot.
7.2 Bloemendaal guarantees the authenticity of the plants that it delivers. If the requirement of authenticity is not fulfilled, provided this is sufficiently argued, the Buyer can claim redelivery or credit. If an agreement cannot be reached between Bloemendaal and the Buyer in respect of the authenticity, the services of an expert recognised in the discipline, who specialises in the field, will be engaged.
8. Complaints
8.1 If, after delivery, it is found that a consignment does not fulfil the quality and authenticity guarantee, or displays other defects, the Buyer must inform Bloemendaal of these defects in writing within 4 working days after the delivery. The Buyer is obliged to clearly describe the defects. Complaints about plants called off during the period from 15 November through to 15 February may, by way of derogation from the 4-day period, be submitted in writing within 15 working day of the delivery. This provision only applies to plants that have remained in the Netherlands.
8.2 The plants about which a complaint is submitted, as described in paragraph 1 of this article, must remain at the Buyer’s company for 5 working days of the written complaint being sent by the Buyer, at the disposal of Bloemendaal. After this period has expired, unless Bloemendaal has asked the Buyer in writing and in a timely manner to keep the consignment at its disposal for another 5 working days, the Buyer shall be entitled to destroy these plants. If the complaints concern the underground plant parts, plants with the soil removed or washed off may also be made available. Samples should be used wherever possible.
8.3 If hidden defects are found, these must be reported immediately to Bloemendaal along with justification. The right to complain lapses if the Buyer, or the subsequent acquirer, disposes of the delivered products after the defect became visible (in all reasonableness).
8.4 In the event of non-authenticity or impurity, complaints after the first growing period, subsequent to delivery, are only possible if the Buyer proves that neither on delivery nor during the initial growth period, the non-authenticity or impurity could reasonably be detected.
8.5 All rights to complain lapse if the Buyer does not treat the plants that it has rejected with due care during the time that they are at its site.
8.6 If it is stated in the purchase agreement that the call-off product purchased is intended for export to a particular country, and the export to that country cannot take place because of government measures of a general nature, phytosanitary measures, war situations, measures arising from that, or strikes of a general nature, making transportation to that country completely impossible, the Buyer is entitled to cancel the purchase, with due observation of the following term. The Buyer is obliged to inform Bloemendaal of this at least 1 week after official publication of the aforementioned conditions/circumstances.
Art. 9 Liability
9.1 Any liability of Bloemendaal is limited to a maximum of the purchase price of the delivered consignment that caused the damage/loss at the Buyer, with a maximum of EUR 2,500. The damage resulting from intent or deliberate recklessness on the part of Bloemendaal is not excluded.
9.2 Under no circumstances is Bloemendaal liable for indirect damage, including consequential damage, lost profit, missed savings and damage resulting from business interruption. Bloemendaal is equally not liable for all direct or indirect damage, consequential and immaterial damage suffered by the Buyer or third parties that is in any way related to, or caused by, non-execution, late execution or improper execution of the assignment.
9.3 Bloemendaal accepts no liability for the regrowth of the delivered plants.
9.4 In deviation from the statutory limitation periods, the limitation period for all claims and defences vis-a-vis Bloemendaal is one year. In all cases, the interruption of the limitation period must take place by way of a bailiff’s writ.
Art. 10 Force majeure
10.1 The parties are not required to comply with any obligation if they are prevented from doing so as a consequence of a circumstance not attributable to fault and which is not considered to be their responsibility by virtue of the law, a legal act or according to generally accepted standards.
10.2 In these general terms and conditions, force majeure is understood to mean, in addition to what is understood by this in law and case law, all external causes, foreseen or unforeseen, which Bloemendaal cannot influence, but as a result of which Bloemendaal is unable to fulfil its obligations. Examples of force majeure are: domestic and foreign riots, government measures, strikes and the threat of strikes within the Bloemendaal organisation, disruption of exchange rates, fire, burglary, sabotage, extreme weather conditions causing plant growth retardation, diseases or pests, epidemic and/or pandemic, poor root quality, non-delivery or late delivery by suppliers, incapacity for work and/or extreme weather situations.
10.3 Bloemendaal also has the right to invoke force majeure, if the circumstance that prevents (further) fulfilment, occurs after Bloemendaal should have fulfilled its commitment.
10.4 During the period that the force majeure continues, parties can suspend the obligations under the agreement. If this period continues for more than 30 days, either of the parties is entitled to dissolve the agreement, without any obligation to pay compensation to the other party.
Art. 11 Suspension and dissolution
11.1 Bloemendaal is entitled to suspend the fulfilment of the obligations, or to immediately terminate the agreement, without being obliged to repay the value of the contract or any compensation for damages, if:
1. The Buyer fails to fulfil the obligations under the agreement, fails to fulfil them in full, or in good time.
2. After entering into the agreement, Bloemendaal becomes aware of circumstances that give it good reason to doubt whether the Buyer will fulfil the obligations.
3. Circumstances arise which are of such a nature that fulfilment of the agreement is impossible, or if circumstances otherwise arise that are of such a nature that Bloemendaal cannot be reasonably expected to allow the agreement to continue unamended.
4. The Buyer is granted a (provisional) moratorium on payments, the Buyer’s bankruptcy has been, or is likely to be, filed for and prejudgement attachment or attachment in execution are served at the expense of the Buyer.
5. In the event of a significant change in management, or the Buyer’s control.
If Bloemendaal decides to suspend or terminate the agreement, it shall be under no obligation to compensate any losses or costs ensuing from this in any way.
11.2 If the agreement is terminated, Bloemendaal’s claims against the Buyer are immediately due and payable.
11.3 If the Buyer dissolves or cancels the agreement, Bloemendaal is entitled to:
1. Compensation of the price set out in the agreement, calculated according to the status of the Work at the time of dissolution or cancellation.
2. Compensation of 5% of the remainder of the price set out in the agreement that the Buyer would have owed in the event of full execution of the Work.
3. Reimbursement of all costs incurred, and to be incurred, arising from obligations that Bloemendaal has already entered into at the time of dissolution or cancellation with a view to execution of the agreement.
11.4 The provisions in this article shall not prejudice Bloemendaal’s statutory rights.
Art. 12 Applicable law, jurisdiction
12.1 This agreement is subject to Dutch law. The applicability of the Vienna Sales Convention is excluded.
12.2 All disputes, including any that are only considered to be a dispute by one of the two parties in respect of an agreement, to which these general terms and conditions apply, any agreements deriving from these, or these general terms and conditions, shall be settled through arbitration by the Dutch Arbitration Court for Nurseries (Nederlands Scheidsgerecht voor de Boomkwekerij) in accordance with the arbitration rules applicable at that time. Nevertheless, Bloemendaal also has the right to submit a dispute to the competent judge at the District Court of The Hague. A Buyer not acting within the capacity of an occupation or business has the right to submit a dispute to the competent court at any time.