General terms and conditions  (download PDF)

Clause 1 : Applicability

1. These general terms and conditions shall apply to all offers, quotations, orders and agreements in respect of which VWS Export - Import of Flowerbulbs BV (hereinafter: VWS) acts as party. These terms and conditions shall apply in full between VWS and its opposite party (hereinafter: "client"), unless VWS has agreed in writing to a deviation there from.

2. Any general terms and conditions used by the client shall not apply as far as the relationship between VWS and this client is concerned, unless VWS has accepted the applicability of such
terms and conditions expressly in writing.

3. These general terms and conditions shall be deemed to form an integral part of all offers made by VWS.

Clause 2 : Offers

1. Unless the text of the offer stipulates otherwise, all offers of VWS shall be without any obligation. VWS expressly reserves the right to implement price changes which occur between the time of making the offer and concluding the agreement.

2. All offers made by VWS either directly or via its agents shall be quoted by VWS as being without any obligation.

Clause 3 : Agreement

1. An agreement shall only be deemed to have been effected once VWS has sent out a written acceptance and confirmation of the agreement.

2. In the event of the sale of varieties which are subject to plant breeders’ rights or similar rights, the client shall be bound by the obligations connected with such rights imposed by the entitled party. Contracts of sale in respect of these varieties shall only be concluded subject to the resolutive condition that a licensing agreement be concluded which will make fulfillment of the contract of sale in question possible.

3. The client shall be obliged to comply with the conditions relating to the non-propagation and non-sale of varieties protected by plant breeders’ rights, which varieties are indicated by VWS with an “R”. The client indemnifies VWS against all claims of third parties relating to the violation by the client of said protective conditions.

Clause 4 : Prices

1. All prices shall be ex warehouse of VWS and exclusive of VAT and any due and payable fees and duties.

2. All prices shall be quoted in euro, unless expressly indicated otherwise.

3. Packaging shall be charged to the client at cost and shall not be taken back by VWS under any circumstances.

Clause 5 : Delivery and transport

1. All deliveries shall take place ex warehouse of VWS.

2. Should the client not give any instructions for shipping or other actions related to transportation, the client shall be deemed to have agreed to the procedures used by VWS in this regard. Deviating terms of delivery must be included in writing in the agreement.

3. Agreed delivery dates shall not, in view of the nature of the products delivered by VWS, be firm dates as defined in article 6:83 a BW [Dutch Civil Code]. An agreed delivery date shall be deemed to be a guide date. Should delivery not have taken place by the agreed guide date, the client must send a written notice of default to VWS and give it a reasonable period in which to make the delivery. Should delivery not be possible within the meaning of clause 7 of these general terms and conditions, VWS shall be entitled to cancel the delivery in full, without prejudice to the provisions of clause 11 of these general terms and conditions.

4. Should it be necessary to obtain any statutory permit or consent before delivery can be made, the client shall render any assistance required in this regard. Not obtaining the permits or consent (in full) or only obtaining such permits or consent at a later date shall be entirely for the account and risk of the client.

Clause 6 : Payment

1. Payments must be made to the bank account of VWS stipulated in the agreement within 30 days of the invoice date without any discount or set-off, unless it has been provided otherwise in writing. Should the payment date be exceeded, the client shall be in default by operation of the law. The client shall owe VWS interest equal to the statutory interest for the period during which it is in default. Should the client be in default, VWS shall, without prejudice to any other rights to which it is entitled, be entitled to charge any costs which it incurs in respect of collection and the safeguarding of its rights, including the costs of legal assistance, to the client. Extrajudicial costs shall be calculated in accordance with the collection rates of the Nederlandse Orde van Advocaten [the Netherlands Bar].

2. Should, where payment in installments has been agreed, the client fail to pay an installment, the full invoice amount shall as a result become immediately due and payable, without it being necessary for VWS to send a further notice of default.

3. VWS shall be entitled to demand that (a part of) the payment be made immediately on delivery.

4. VWS reserves the right to present the client with a bill for acceptance.

5. As far as payments are concerned, the client shall not be entitled to put up a defense of set-off vis-à-vis VWS.

Clause 7 : Force majeure

1. Force majeure shall be deemed to be any circumstance as a result of which the (further) fulfillment of this agreement either in full or in part cannot in all reasonableness be expected from VWS, regardless of whether such circumstance occurs in respect of VWS, its suppliers or any other third party on which VWS depends.

2. Force majeure shall, inter alia, include: strikes, lockouts, fire, weather influences, growing failures, floods, terrorism, lack of transportation means, government regulations, the issue of import or export permits being refused by the government, riots, mobilization, a state of siege, blockades, interruption of operations, excessive illness among staff, the delayed or faulty delivery of packaging material or raw and ancillary materials.

3. In the event of force majeure as defined above, VWS shall be entitled to suspend the fulfillment of its obligations or to cancel these definitively. In such case, clause 11 of these general terms and conditions shall then apply in full. VWS shall inform the client in writing of the suspension and/or cancellation as soon as possible following the occurrence of the situation of force majeure.

Clause 8 : Dissolution, cancellation and suspension

1. VWS shall, without any further notice of default being required, be entitled, by means of a written declaration, to dissolve the agreement with the client in question either wholly or partially, to suspend its obligations, to claim the goods delivered by it subject to the retention of title and/or to demand immediate payment of all that which the client owes it, should:

a. the client fail to fulfill its obligations vis-à-vis VWS either wholly or partially, even where such failure cannot be attributed to the client;

b. VWS have valid reasons to assume that the client in question will not or will not be able to fulfill its obligations vis-à-vis VWS and should the client fail to comply with a request from VWS to state in writing within a reasonable period of time that the client will indeed fulfill its obligations vis-à-vis VWS;

c. the client apply for a suspension of payments or should a petition for an order for compulsory winding up be submitted against the client;

d. a third party make an attachment against the client on goods belonging to VWS.

2. In the event of the dissolution of the agreement by VWS on the basis of the provisions under 1 above, the client shall be obliged to compensate VWS for all damage suffered by it as a result, including the costs of undoing, the costs of (partial) implementation and lost profit.

3. In the event of the cancellation of the agreement by the client after having concluded this
agreement, the client shall be obliged to compensate VWS for all damage suffered by it as a
result, including the costs of undoing, the costs of (partial) implementation and lost profit.

4. In the event of dissolution of the agreement in the way as mentioned under 2 and 3, at all events the client shall owe VWS as a compensation an amount of 25% of the gross amount for which VWS would have invoiced the client, had the agreement been implemented in the regular way, without prejudice to the right of VWS to full compensation. The compensation amount must be paid by the client to VWS within 14 days after the request for that on the part of VWS.

Clause 9 : Retention of title

1. All goods delivered by VWS shall remain its property until the client has fulfilled in full all claims relating to the counter-performance in respect of the goods delivered or to be delivered to the client by VWS in accordance with the agreement and in respect of any services provided or to be provided to the client pursuant to such an agreement, as well as all claims arising from the non-fulfillment of such agreements.

2. The client shall be entitled to sell the goods delivered to it subject to the retention of title to third parties within the framework of its regular business operations and, on delivery of the goods sold in this manner, to transfer the ownership thereof. The client shall forfeit the right referred to in the first sentence should it be granted a suspension of payments or should it be declared bankrupt.

3. The client shall not be entitled to give the products delivered by VWS subject to the retention of title on loan to third parties, to pledge such goods or otherwise to encumber such goods with any right for the benefit of third parties.

4. Should the goods have been sold and delivered by the client to third parties, the client shall, on first demand by VWS, be obliged to pledge its claim in respect of these deliveries to VWS as security for all that it owes to VWS. In this regard, the client hereby grants VWS an irrevocable power of attorney to effect such pledge, if necessary, itself on behalf of the client.

5. The client shall be obliged to properly insure the goods delivered by VWS subject to the retention of title against the usual dangers at its own expense and to keep such goods insured; the client shall be obliged to provide proof of the insurance to VWS at the request of VWS.

Clause 10 : Quarantee

1. VWS guarantees the authenticity of all varieties delivered by it, however, subject to the provisions of clause 7 and taking into account clause 11 of these general terms and conditions.

2. VWS does not in any way whatsoever guarantee the result of the culture, including the flowering.

3. VWS expressly reserves the right to replace varieties which have been sold out and/or which are no longer available with other varieties. VWS shall inform the client of fundamental changes.

Clause 11 : Liability

1. VWS shall accept no liability for any shortcomings in the goods delivered by it and the consequences thereof, for any other shortcomings in the fulfillment of the obligations of VWS and/or advice given by VWS or for any mediation and/or supervision carried out by it, except for in cases of gross negligence or intention.

2. VWS shall accept no liability for any damage to bulbs which it has in its possession for the purpose of safekeeping or processing - regardless of whether this takes place via an auxiliary person - except for in cases of gross negligence or intention. Unless it has been expressly agreed otherwise, the entitled party and/or the client must ensure that there is sufficient insurance against any form of damage to the goods in safekeeping at VWS and VWS shall not be obliged to insure goods accepted for safekeeping or processing.

3. VWS shall not be liable for any losses incurred by the client as a result of a given delivery date being exceeded, unless such exceeding can be attributed to the intention or gross negligence of VWS.

4. In cases where VWS is liable on the grounds of the aforementioned provisions, its liability shall in all cases be limited to the net invoice amount which has been or would have been invoiced by VWS in such case, or, at the choice of VWS, to the replacement value of the goods which are and/or were the subject of the agreement in question.

5. VWS shall under no circumstances be liable for any form of consequential loss and/or pure financial loss.

6. The liability of VWS shall in any case be limited to a maximum of € 10,000.

7. The client indemnifies VWS, both judicially and extrajudicial, against all compensation claims of third parties which arise either directly or indirectly from an agreement between the client and VWS.

Clause 12 : Complaints

1. Complaints about shortcomings in the goods delivered by VWS must be reported to VWS by registered letter within 8 days of the shortcoming becoming apparent, carefully stating the nature and reason for the shortcomings.

2. Should VWS be of the opinion that a complaint is justified, VWS shall be entitled to replace the faulty goods, returned with the permission of VWS, while still maintaining the existing agreement, all the above without prejudice to the provisions of clause 11 of these general terms and conditions.

3. Return consignments shall not be accepted by VWS, except on the grounds of an obligation pursuant to law.

4. Should the client refuse to accept a consignment without having legally valid reasons to do so, VWS shall be entitled to sell the goods to another party. The client shall then be liable for any price difference occurring to the detriment of VWS, without prejudice to the right of VWS to claim damages and costs in such case.

Clause 13 : Advertising material

1. Any advertising material put into circulation by VWS and held by its clients shall remain the property of VWS and may not be used by the client in any other way or for any other purpose than that for which it was made available to the client.

Clause 14: applicable law and competent court

1. All disputes arising from or connected with the agreement concluded between VWS and its clients, of which these general terms and conditions form an integral part, shall be submitted to the judgment of the competent court in Alkmaar. All agreements shall be subject exclusively to Dutch law.

2. The applicability of the Vienna Sales Convention (United Nations Convention on Contracts for the International Sale of Goods, concluded in Vienna on 11 April 1980) shall be expressly excluded.