© January 2008 General Terms Esmeralda farms
Filed with the Chamber of Commerce and Industries based in Amsterdam under no. 34101544.
- These General Terms apply to any offer made by a wholesaler in floricultural products (hereinafter referred to as "the seller") and to any agreement concluded between the seller and a client (hereinafter referred to as "the buyer"), and to the execution of such an agreement.
- Conditions which deviate from these terms shall expressly be agreed upon in writing and are to be regarded as supplementary, in as far as they do not supersede the stipulations of these terms.
- All offers shall be without engagement, unless they include a time.
If any offer made without engagement is accepted by the buyer, the seller shall have the right to withdraw the offer within two working days after having received the acceptance.
- An agreement is concluded at the moment of the express acceptance of the order on the part of the seller in a manner which is customary in the trade.
- In general, the prices shall be fixed upon the acceptance of the order.
They shall be based upon the current market prices as determined by supply and demand.
- Agreed prices (price limits) shall never be deviated from, without the buyer's consent previously obtained.
- Prices are:
a. ex seller's premises;
b. exclusive of VAT, costs of packing, import duties, other taxes and levies, and costs of loading and unloading, transport, insurance, quality control and/or phyto-sanitary examination;
c. the prices shall be deemed to be quoted in Dutch currency or, related to the said currency at the current rate, in a currency as stated on the invoice.
IV SUPPLY AND TIME OF DELIVERY
- The seller shall be obliged to supply the agreed quantity, unless force majeure necessitate a reduction in quantity.
- The seller shall be obliged to forthwith inform the buyer of this case of force majeure and will then be entitled to supply a smaller quantity.
- a. The place of delivery shall be the seller's warehouse/processing room.
b. In case of despatch by the seller's own means of transport, the place of delivery shall, contrary to the stipulation made under the letter a., be the place of destination.
c. In case a forwarding agent and/or carrier is called in, the place of delivery shall, contrary to the stipulation made under the letter a., be the place of departure of the third party called in.
- Delivery free of charge will take place only if and in as far as agreed upon and stated by the seller on the invoice.
- Times of delivery stated shall never be regarded as limits of time, unless expressly agreed otherwise. Hence, in case of delayed delivery the seller must expressly have been declared in default in writing.
- If the buyer should not have taken up any products ordered at the agreed place and time, any loss in quality possibly resulting from storage shall be at the buyer's risk. The products ordered shall be at his disposal, stored at his expense and risk.
If, however, the buyer fails to take delivery after the expiration of a limited storage period, which may be regarded reasonable with a view to the kind of product, and the risk for loss of quality and/or decay of the products leaves no other option, the order shall be deemed to have been cancelled by the buyer. In that case the seller shall be entitled to sell the products in question.
The defaulting buyer shall be obliged to take for his account the difference in price, if any, caused by such a sale, as well as any further relevant costs, damage and loss incurred on the part of the seller.
- The seller reserves the right to refuse to carry out orders if the buyer failed to pay previous deliveries within the term of payment agreed upon. The seller shall not be liable for any damage or loss incurred by the buyer as a result of non-delivery.
When exercising this right, the seller is to inform the buyer hereof in good time.
V FORCE MAJEURE
- If owing to force majeure delivery cannot be effected in conformity with the agreement, the seller is to inform the buyer of this as quickly as possible by telefax/telex/telegram or by telephone, confirming this message in writing.
- In case of force majeure the seller can, after consultation with the buyer, either cancel the agreement or suspend delivery until the moment that the case of force majeure ceases to exist.
- If, in case of suspension, delivery is delayed by more than two days, the buyer shall be authorized to inform the seller in writing that he considers the agreement to be cancelled.
- Force majeure is understood to mean: any circumstance beyond the seller's direct control, as a result of which execution of the agreement can no longer be reasonably required, such as, among other things, war, impending war, strikes, fire, extreme weather conditions or government measures.
VI QUALITY AND HEALTH
- The products to be supplied shall meet the customary standards of quality applicable for the relevant floricultural products.
- The products to be exported shall furthermore meet the phyto-sanitary government requirements applicable in the importing country in respect of the relevant floricultural products.
Any failures in this respect shall not give the buyer any claim to receive compensation or to cancel the agreement, unless the buyer has informed the seller of any special phyto-sanitary requirements prior to or at the time of the conclusion of the agreement.
- Packing will take place in the manner customary in the floricultural wholesale trade and is determined by the seller in accordance with trade practice, unless agreed otherwise.
- Disposable packing materials shall be charged at cost price.
- Packing materials used more than once and other durable materials (cartons, containers, stacking trolleys etc.), which remain the seller's property shall also be charged at cost price and must be returned. The costs of the return transport shall be charged to the buyer separately.
If the materials are returned in an undamaged condition within 30 days after the date of invoice, the costs charged will be credited, possibly after deduction of an agreed amount for their use.
- With regard to durable packing materials (stacking trolleys, containers, etc.), which have been given to the buyer on loan for use, the seller reserves the right, in case the buyer fails to return the relevant materials, to charge the materials to the buyer as yet and to recover from the latter any further damage or loss incurred as a consequence of the buyer's default.
- If deposit charges are made, they will be settled after the relevant materials have been returned in an undamaged condition. The costs of the return transport are charged to the buyer.
VIII SHIPMENT AND TRANSPORT
- Shipment and forwarding must take place in an efficient manner.
- If the buyer has not stipulated for any means of transport, the seller shall choose the most customary manner of transport.
- The transport charges shall be at the buyer's expense.
- In case of forwarding by the seller's own means of transport, he shall be liable for damage sustained up to the buyer's acceptance of the products.
- Contrary to the provision under 4., the seller shall, when calling in a forwarding agent, only be liable for damage sustained up to the forwarding agent's acceptance of the products.
- Complaints concerning visible flaws of products supplied should be reported to the seller immediately after they have been established or in any case within 24 hours of receipt by telefax/telex/telegram or by telephone to the seller.
Complaints made by telephone should be confirmed by the buyer in writing within three days of receipt of the products.
Moreover the buyer or receiver of the goods shall make a note of the complaint on the relevant transport documents in order to confirm the fact that the complaint existed at the time of delivery of the products.
- Complaints concerning hidden flaws should be reported to the seller immediately on establishing these flaws, and should at any rate be lodged with the seller in writing in such manner that the seller will be in a position to verify or have verified that the complaint is justified on the spot and/or fetch back the products delivered.
- Complaints should at least contain:
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 and the products rejected by the buyer are indeed one and the same.
- Complaints concerning part of the products supplied cannot be a cause for rejecting the entire consignment.
- After expiry of the terms mentioned above the buyer is deemed to have approved the products delivered, or the invoice.
As from that moment the seller shall not deal with any claims.
- The compensation by the seller of any damage sustained by the buyer shall be limited to the invoice value of the consignment to which the complaint relates, unless the buyer proves that the damage is caused by wilful intent or gross negligence on the part of the seller himself or executive officers of the seller.
- Payment shall be made, at the seller's option:
a. net cash on delivery, or
b. by deposit or remittance to a bank or giro account designated by the seller, within fourteen days after the date of invoice.
- It shall not be competent for the buyer to deduct from the purchase price owed any amount on account of a counter claim put forward by him.
The buyer shall not be allowed to suspend payment on the basis of a complaint respecting the consignment, if the seller proves that the complaint is unjustified.
- The buyer will be in default by the mere lapse of the term of payment agreed upon, without any separate notice of default being required.
- In case of default on the part of the buyer, the seller shall be entitled to charge the buyer 1.5% interest per month as from the due date of the invoice up to the day of settlement in full.
In case of default on the part of the buyer, the seller shall also have the right to charge buyer the exchange rate loss incurred as a consequence of this default.
- If payment has to be effected through the mediation of third parties, all resulting costs -- both at law and otherwise -- shall be at the buyer's expense.
This means that the defaulting buyer -- regardless of legal costs, if any -- shall owe a forthwith payable sum equal to 15% of the invoice amount or the actual collection costs on account of the costs resulting from his default.
XII RETENTION OF TITLE
- As long as the buyer has not paid the full purchase price, title in the products supplied shall remain with the seller.
- In the event of a delay in the payment of one or more invoices that have become due and if the actual circumstances of the case and a reasonable consideration of parties' interest leave no other option, then the seller shall have the right to forthwith take possession of the products supplied, as well as of the packing and other durable materials (cartons, containers stacking trolleys etc.) and to remove them from the place where they were stored.
XIII APPLICABLE LAW/DISPUTES
- All agreements to which these General Terms fully or partly apply, shall be governed by the law of the Netherlands.
- Any disputes (including those which are only regarded as such by one of the parties) relating to or arising from agreements concluded between the seller and a buyer who is established abroad, to which these General Terms apply, can be subjected to the judgment of the competent Dutch Court of the district in which the seller has established his business.
- In deviation of the stipulations made under 2. the seller and buyer, established at home or abroad may agree to submit a dispute to an arbitration committee, whose award shall be accepted as binding by both parties.
XIV FINAL STIPULATION
- In those cases which are not covered by these General Terms, the law of the Netherlands shall also apply.
- If and in so far as any part or any stipulation of these General terms 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 Terms shall continue to be binding on both parties.