statutorily domiciled in Zwijndrecht and having its offices in H.I. Ambacht, as registered on 7 June 2004 with the Chamber of Commerce in RotterdamArticle 1: General
1.1 Hamer Bloemzaden bv make use of and trade with the trade name “Florensis”
1.2 These General Terms and Conditions and that specified in Hamer Bloemzaden B.V.’s (hereinafter: Hamer) confirmation of order shall apply in all cases to legal relationships with Hamer, unless explicit agreement to the contrary has been concluded.
1.3 Should documents originating from the buyer refer to its own purchase or other general terms and conditions, the general terms and conditions given here shall take precedence.
1.4 By ‘goods’ shall be understood genetic material of flower seed species, including (processed) seeds, plants and constituents of plants.
1.5 The goods which are supplied by Hamer may be employed solely in compliance with their end-purpose, namely production of the final product. The plants of the types that are included in the catalogue may be poisonous; these plants are therefore not suitable for human or animal consumption. Application for breeding is prohibited.
1.6 Verbal agreements with and practices of the buyer shall not be binding on Hamer except after and insofar as Hamer has confirmed them in writing.
Article 2: Quotations and prices
2.1 Hamer’s quotations shall be without engagement. Hamer may - possibly as result of an offer - refuse by return mail to accept an order placed by the buyer.
2.2 All prices shall be, unless stipulated to the contrary, exclusive of taxes and/or duties which may be applied and/or levied in respect of the delivery and without discount.
2.3 Should subsequent to concluding the contract and prior to delivery one or more of the cost price factors (under which shall be understood also a change to currency exchange rate) undergo an increase causing Hamer’s price-list to be subject to partial or total replacement, Hamer is entitled to increase the price contracted correspondingly. Should the price contracted exceed in consequence 15% of the price originally contracted, the buyer shall be entitled to dissolve the contract by written notification to Hamer within 7 days of being apprised of such increase by Hamer.
2.4 Seed prices shall be computed according to the graduated quantity rates given in the catalogue: in this the prices shall apply from the graduated quantity specified. This in all cases for purchase of one lot of the same species or the same selection.
2.5 Should the quantity ordered in an order diverge from standard quantity maintained by Hamer, or a multiple thereof, Hamer shall be entitled to supply by rounding-off upwards the next largest quantity.
2.6 Should when supplying plant material a larger number of plants be ‘warranted’ than is customary, Hamer shall be permitted to invoice extra up to a maximum of 5%.
2.7 The smallest graduated quantity specified for an item shall be the minimum quantity which can be supplied.
2.8 The weights supplied shall be net.
Article 3: Orders
3.1 Orders shall be fulfilled with extreme diligence. The buyer should employ solely the nomenclature or numbers which Hamer stipulates in its catalogue.
3.2 Delivery shall, if no specific delivery term has been specified, be within a reasonable term.
3.3 The delivery term shall be based on the circumstances prevailing at the time of concluding the contract and subject to the presumption of timely delivery of the goods necessary to Hamer’s execution of the contract. Should a delay occur due to said circumstances or (failure of) delivery, the delivery term shall be extended to the extent that, taking all circumstances into account, is reasonable.
3.4 The goods shall be held to have been delivered with respect to delivery term when they are ready for dispatch as stipulated in article 2 paragraph 2.
3.5 Exceeding the delivery term by a period of up to 6 weeks shall convey no right to the buyer to suspend or dissolve the contract, nor to compensation for damages.
3.6 Exceeding the delivery term by a period in excess of 6 weeks shall convey to buyer solely the right to dissolve the contract (in whole or part) by written notification of this to Hamer within 7 days of same. Hamer may also in such dissolve the contract (in whole or part). Hamer shall be at such time not liable for compensation for damages.
3.7 The minimum order quantity for seed shall be Euro 100.--, VAT excluded. Plant material orders are subject to the minimum order quantity as stipulated in the catalogue.
Article 4: Payment
4.1 Payment by the buyer of the price contracted shall be effected within 30 days of invoice date, unless payment in advance has been stipulated, or unless a longer line of credit has been agreed in writing. Should delivery have been effected but no invoice yet sent, buyer shall pay the price contracted within 30 days of that delivery.
4.2 The buyer shall, should it not have paid within the period stipulated in the previous paragraph, be automatically in default and shall without the necessity of further notice of default be liable for an increase from the due date amounting to 1% per month or part of a month over the amount due including VAT and this without prejudice to Hamer’s remaining rights.
4.3 All payments shall be made without discount or off-set to the account of Hamer or to an account stipulated by it.
4.4 The buyer shall if requested provide sufficient surety for the fulfilment of existent or future obligations arising from the contract concluded. Hamer may, for as long as this surety has not been provided, defer its obligations arising from the contract. Should such surety not have been given within a reasonable period specified by Hamer for that purpose, or if the surety provided is by reasonable judgment unsatisfactory or defective, Hamer shall be entitled to by written notification dissolve the contract in whole or part, without obligation to compensation for damages or guarantee and without prejudice to Hamer’s remaining rights.
4.5 All collection costs, both in and out of court, which Hamer incurs in execution of the contract and General Terms and Conditions shall be for buyer’s account. The out of court expenses shall amount to a minimum of 15% of the principal. All expenses shall be computed on the basis of the reference rates of the Dutch Bar Association.
Article 5: Dissolution and suspension
5.1 Hamer may dissolve or suspend the contract with the buyer in whole or part without further notification of default or legal intervention in the event that the buyer does not, does not adequately or does not promptly comply with any obligation to which it is subject in consequence of the contract concluded with Hamer or a contract associated therewith or if there is fair reason to doubt whether the buyer is able or prepared to fulfil its contractual obligations towards Hamer. Hamer shall exercise this same prerogative in the event of bankruptcy and moratorium of payment to attach under foreclosure buyer’s goods and in the event of the buyer’s death or tutelage. Hamer is in such case not liable for damages nor for the provision of guarantee. All Hamer’s claims on the buyer shall then moreover be summarily due and payable.
5.2 In the event of inability by cause of force majeure on Hamer’s part to execute the contract, Hamer may without legal intervention dissolve the contract in whole or part or suspend its obligations without being liable for any compensation for damages.
5.3 Hamer shall be entitled to suspend release of goods already paid for, for as long as that due to Hamer by the buyer has not been discharged with interest and expenses.
Article 6: Termination
6.1 In the event of termination by buyer, for any reason whatever, buyer shall be obligated to pay the contracted purchase sum. The only exception shall be if the nursery goods have failed due to gross negligence on the part of Hamer.
Article 7: Intermediaries
7.1 Orders, engagements and instructions given to, made with or accepted by intermediaries shall be binding on Hamer only after they been confirmed by Hamer in writing.
Article 8: Harvest and processing proviso
8.1 Delivery shall be subject to the usual harvest and processing proviso. When Hamer has made a justified appeal to the harvest and processing proviso, Hamer shall not be obligated to deliver but shall if possible, try to deliver proportionate to the quantity ordered or to deliver comparable alternative material Hamer shall also be authorized to dissolve the Contract Article 9: Delivery
Article 9: Delivery
9.1 Unless explicitly agreed otherwise delivery shall be effected C.I.P. in compliance with the then applying Incoterms. For express shipment and for special packaging at buyer’s request, the costs associated therewith shall be charged to the buyer.
9.2 Hamer shall be obligated or entitled to charge to buyer taxes or levies imposed in respect of deliveries contracted.
Article 10: Transfer of title
10.1 The title to that delivered pursuant to this contract shall pass to buyer only after the claims by Hamer on the buyer in respect of that delivered or to be delivered to the buyer by Hamer pursuant to this contract or claims by Hamer in respect of failures by the buyer in the fulfilment of a similar contract have been met in full including interest and expenses.
10.2 Hamer shall, should the buyer not meet or not meet promptly its payment obligations, without prejudice to its remaining rights, be entitled to recover the goods supplied on which retention of title rests.
10.3 The buyer shall advise Hamer immediately of attachment under foreclosure, moratorium of payment or bankruptcy. The buyer shall moreover inform the trustee, bailiff or court appointed administrator of Hamer’s retention of title.
10.4 The buyer shall be held to refrain from alienating or encumbering goods delivered which are subject to retention of title.
10.5 Returnable packaging delivered such as trays which are not referred to explicitly in the invoice as constituting part of the purchase price shall remain Hamer’s property. The buyer shall return these undamaged to Hamer at own expense within a reasonable period of time, unless the goods are to be recovered by Hamer in the context of a future order.
Article 11: Grower’s rights or contractual protection of original varieties
11.1 Source material pertaining to the ornamental plant sector, protected by a grower’s right and/or perpetual covenant granted in The Netherlands and/or any other country, and also source material of breeds that are identified by Hamer with an “R’, may not be used for propagation or trade.
11.2 The source material supplied may be used by buyer only for the cultivation of finished ornamental varieties at the business of buyer. This clause must be maintained as a perpetual covenant by the buyer with respect to his purchasers.
11.3 Abuse can lead to an immediate payable fine of Euro 0,55 per cutting. Hamer holds the right as licence holder to recover the real damage from the offender.
11.4 Hamer shall be authorized to enter buyer’s business and/or the land under its control, where the source material supplied by Hamer is located, in order to view and/or assess that material. Hamer shall advise buyer in good time of its visit.
11.5 Hamer has the right to appoint an independent third party to audit the books of the buyer.
11.6 The finished product, originating from source material supplied to buyer, may be sold by buyer under the appropriate (variety) name and if applicable trade name.
11.7 Should the buyer discover a mutant in a protected variety, it must inform the holder of the grower’s right of this immediately by registered letter.
11.8 The buyer shall at the written request of the holder of the grower’s right within a period of 2 (two) months from receipt of a request to that effect release trial material to the holder of grower’s right.
11.9 The buyer is aware that the finder of a mutant in the protected variety requires permission from the grower(s) of the “maternal strain to exploit the mutant.
11.10 The buyer is specifically aware that the finder of a mutant requires permission from the holder of the grower’s right with respect to the “maternal strain” to carry out the following procedures with the material of the variety, including material harvested (consequently also flowers, plants and parts of plants), specifically:
a. produce or duplicate (propagate);
b. condition for the purpose of propagation;
c. tender for sale;
d. sell or merchandize in any other way;
e. export and/or import;
f. hold in stock for the purposes stipulated under a to and including e above.
Article 12: Force Majeure
12.1 Under force majeure shall be understood every circumstance outwith the control of Hamer - even those which could possibly have been foreseen at the time of establishment of the contract - which prevent Hamer permanently or temporarily from fulfilling the contract as well as, to the extent that they have not yet been included, crop failure, crop of seed of inadequate quality, diseases in own company or in the company of a supplier, transport problems, war, war hazard, civil war, acts of violence, strikes, sit-down strikes, government measures, fire, water, frost and storm damage, disturbances to supply of raw materials, water and energy to own company and to suppliers’ companies and non-delivery or tardy delivery on the part of suppliers.
12.2 Hamer shall advise the buyer as soon as possible of the force majeure.
Article 13: Complaints
13.1 The buyer shall inspect the goods supplied immediately after delivery.
13.2 Hamer shall supply customary trade quality. Complaints in respect of that supplied shall be dealt with as follows:
13.2a Complaints with regard to the number, the weight, the appearance of the goods or with regard to the invoice shall be made in writing to Hamer within 6 working days of delivery.
13.2b Complaints with regard to (apparent) transport damage shall be made to the forwarder at the point of delivery.
13.2c Complaints with regard to germination strength and mechanical purity shall be made to Hamer in writing immediately upon detection and in all events within 60 days of delivery.
13.2d Complaints with regard to species authenticity and species purity shall be made immediately after detection and in any event during the growing season immediately subsequent to purchase, as soon as the crop has developed to an extent that it can be assessed by both parties.
13.3 All buyer’s rights to complain shall lapse if it has not exercised them promptly in the sense of the previous paragraph.
13.4 The buyer shall retain the objects of the complaint at Hamer’s disposal.
13.5 Alleged failure on the part of Hamer to fulfil its obligations shall not discharge the buyer from its obligations towards Hamer.
13.6 Should a complaint be justified, Hamer shall be entitled to supply correctly, without the buyer having any recourse to compensation for damages. Should delivery no longer be practically possible for Hamer, Hamer shall credit to the buyer the amount paid or return it to the extent that it pertains to the faulty part.
13.7 Should the buyer not, not adequately or not promptly meet one of its obligations towards Hamer, arising from any contract whatsoever, Hamer’s obligations shall expire with respect to all contracts.
Article 14: Liability
14.1 Hamer’s liability shall in all cases be restricted to the obligation of replacement or restitution as described in article 13 paragraph 6. All liability shall moreover be excluded when the buyer has not acted in compliance with article 13.
14.2 All liability for compensation for damages on the part of Hamer shall be restricted to the amount that the buyer has paid to Hamer in the context of the contract. In the event of a partial crop failure the compensation shall not exceed the percentage of the purchase price for that portion of the crop that has failed. All liability on the part of Hamer shall lapse if within 1 year of delivery no legal action has been brought against Hamer.
14.3 Hamer shall under no circumstances be responsible for consequential damages, whereunder included loss of turnover and profit and damage to reputation.
14.4 The buyer shall report any damages as soon as possible and shall insofar as possible strive in consultation with Hamer to limit it.
14.5 Hamer shall not be liable for damages resulting from actions or omissions of its subordinates and representatives.
14.6 Hamer’s liability for goods which Hamer acquired from third parties shall be excluded.
14.7 The buyer shall be obligated to ensure that consumers are informed properly and completely that the goods that they buy are not suitable for consumption. Buyer indemnifies the supplier for the event that supplier is held liable for damage arising from improper application of the goods supplied or of the products produced from them due to improper and/or incomplete information given by the buyer to the consumer.
Article 15: Alteration and processing
15.1 Hamer’s liability shall lapse should the buyer alter, damage or process the goods supplied (for example graduate, pill, coat, disinfect, prime) without Hamer’s explicit permission.
Article 16: Cultivation recommendations
16.1 Recommendations for cultivation provided by Hamer shall be without engagement. The buyer should itself assess whether the goods are suitable for use under local conditions.
Article 17: Disputes
17.1 All disputes between Hamer and buyer shall notwithstanding other contracts be settled solely by the competent magistrate in the Arrondissement of Rotterdam.
17.2 Furthermore the General Terms and Conditions for Flower and Vegetable Horticultural Production as drawn up by Plantum NL and lodged with the registry of the Chamber of Commerce Rotterdam, Gouda office, on 19 September 2002 shall apply, to the extent that they do not diverge explicitly from the terms and conditions of Hamer Bloemzaden BV.
17.3 These terms and conditions shall replace Hamer’s earlier terms and conditions
Additional Conditions of Sale Young Plant Trays
a. The hard plastic trays used for the production of and for the transport of young plants are and remain at all times the property of Florensis and are not for any use by third parties, if not specifically agreed upon by Florensis in writing.
b. If not otherwise agreed upon in writing by Florensis, trays shall be kept ready for returning by the customer from the following delivery, unless deviating written agreements have been made. Until then the customer has to store the trays free from soil and plant material under proper conditions.
c. In the case of unauthorized usage of the trays by third parties, an amount of € 10,00 (ten euros) per tray will be charged and the trays will be returned to the Florensis facility at customers expense.
d. The trays may not be inscribed, have stickers placed upon them, or vandalised in any other way. Costs related to cleaning or destroying of any trays misused in such manner will be charged to the customer.
e. If the customer is not able for any reason, even after prior notice by Florensis, to return the trays or returns them after too long a time, Florensis reserves the right to charge a fee to the customer up to production cost of the tray.
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