Standard terms and conditions

Article 1 Applicability

1.1. These standard terms and conditions are applicable to all offers, quotes and all agreements made between Boomkwekerij Jeroen Scholten B.V. and Jeroen Scholten Tuinplanten B.V. (hereinafter called the "seller") and a counterparty (hereinafter called the "buyer"). These standard terms and conditions are also applicable to all extra-contractual dealings between the parties, such as tort.

1.2. These terms and conditions are also applicable to agreements made with the seller, for the execution of which the seller needs to appoint third parties.

1.3. Any amendments to, or variations from, these standard terms and conditions will be enforceable only if explicitly agreed in writing between the seller and the buyer. Such amendments or variations will  apply only to the specific agreement in which they were made; any other agreements will remain subject to these standard terms and conditions.

1.4. In the event of any conflict between these standard terms and conditions and the standard terms and conditions of the buyer, the seller's standard terms and conditions shall prevail, to the explicit exclusion of any other terms and conditions.

1.5. Any buyer who has entered into a contract subject to these terms and conditions consents to the applicability of these terms and conditions to any further agreements made between it and the seller.

1.6. If one of more of the provisions of these standard terms and conditions should at any time be void or voided in part or in full, the remainder of these standard terms and conditions will remain applicable in full. In such an event, the seller and the buyer will enter into discussions to agree new provisions to replace the void or voided provisions, whereby the purpose and scope of the original provisions will be observed as far as possible.

1.7. Insofar as these standard terms and conditions are drawn up in any language other than Dutch, the Dutch text shall prevail in all disputes.

1.8. In these terms and conditions, "written" or "in writing" will be taken to mean: by post, by e-mail, by fax or via the website www.jeroenscholten.nl.

Article 2 Definitions

2.1. In these commercial terms and conditions, the following terms will have the definitions set out below:

a.   "tree nursery products" or "plants": ligneous plants supplied in their entirety or as grafts, unrooted cuttings or buds, materials originating from tissue culture as well as perennial plants and water plants, all living;

b.   "Tree Nursery Council": the collaborative foundation set up by Anthos and the Dutch Association of Tree Nurseries;

c.   the "Quality Standards Committee": a committee appointed by the Tree Nursery Council to define the quality standards to which tree nursery products should conform;

d.   the "Foundation for Ancillary Materials": the foundation appointed by the Tree Nursery Council to set the rules to which materials, packaging etc. used in arboriculture should conform;

e.   "product": the plant name, being the official internationally recognised nomenclature, according to the 'List of Names of Woody Plants' and the 'List of Names of Perennials', both published by Applied Plant Research (PPO);

f.    "article": plant name with quality and size indications

g.   "newly potted": plants that have been potted for less than one growing season;

h.   "hidden defect": a defect that could not reasonably have been discovered by the buyer prior to the expiry of the complaints period applicable to non-hidden defects;

i.    "working day": all days of the week, not including Saturdays, Sundays or standardly observed public holidays;

j.    "multiple-use handling materials": any horticultural packaging and transport materials that, by virtue of their nature, can be used more than once, such as crates, pallet boxes and pallets;

k.   "single-use handling materials": any horticultural packaging and transport materials that can  be used only once, such as cardboard boxes, plastic trays and plastic bags;

l.    "CC containers": officially branded trolleys put into circulation by Container Centralen Benelux B.V.

Article 3 Agreement

3.1. All offers and price quotations made by the seller are without obligation, even if such offers or quotations are subject to an acceptance period. All offers are made subject to availability and subject to interim sale to a third party and subject to the growth of the goods to be sold.

3.2. Any agreement will be concluded only after the seller has confirmed the order in writing and after any agreed payment bond, such as an irrevocably confirmed letter of credit, has been accepted in writing by the seller. The seller enters into all agreements on the resolutive condition that the buyer, in the exclusive opinion of the seller's credit insurance provider, appears sufficiently creditworthy to meet all financial obligations under the agreement.

3.3. Any additional subsequent agreements or amendments, as well as any oral commitments made by employees of the seller or made on behalf of the seller by its agents or other representatives, will  become binding upon the seller only after it has confirmed them in writing.

Article 4 Prices

4.1. All prices for goods are determined in the agreed currency (or in euros if no currency has been agreed) exclusive of VAT, import duties and other taxes, levies and/or duties. Prices are based on the nursery at Deurningen, the Netherlands, unless agreed otherwise in writing.

4.2. If one or more of the cost-determining factors change following order confirmation, but prior to delivery of the goods, the seller reserves the right to adjust the agreed prices accordingly.

4.3. All costs relating to transport, packaging, insurance and inspection (by the Netherlands Food and Consumer Product Safety Authority and/or Naktuinbouw, for example) are for the account of the buyer. All foreign import duties, levies and/or taxes that are payable or become payable as a result of the agreement made between the seller and the buyer, whether directly or indirectly, are exclusively and fully for the account of the buyer and may not be deducted from any sums due to the seller.

4.4. If any labelling is prescribed by the Quality Standards Committee, the costs of such labelling, as well as the costs of any gauze, wire baskets, pots or containers, will be passed on to the buyer. If the buyer wishes to receive unlabelled goods, this should be stated on the order confirmation and on the notice of call.

4.5. Upon delivery of the goods by a carrier arranged by the seller, sufficient multiple-use handling materials of equivalent value (as recommended by the Foundation for Ancillary Materials) should be present in an accessible location on the buyer's premises, and exchange should take place, unless otherwise agreed. If the buyer collects or arranges for the collection of the goods from the seller, handling materials should still be exchanged, unless otherwise agreed. If handling materials cannot be exchanged through force majeure, these handling materials will be charged in accordance with the transfer prices set by the Foundation for Ancillary Materials.

4.6. If the seller arranges for the goods to be delivered by a carrier, the costs for multiple-use handling materials will be charged in accordance with the transfer prices set by the Foundation for Ancillary Materials.

4.7. Notwithstanding the provisions of Article 4.6, the buyer shall be entitled to return equivalent multiple-use handling materials. If handling materials are returned by a carrier, the seller and the buyer will make further agreements prior to delivery regarding the cost of the returns and the period within which the returns should take place. The returned handling materials must be accompanied by a notice listing the number of items and a description of the materials.

4.8. If single-use handling materials are agreed when goods are called, the costs of these will be for the account of the buyer.

4.9. If CC containers are used for the delivery of goods, these should be exchanged at the time of delivery.

4.10. If the seller and the buyer agree a price in any currency other than the euro, the euro exchange rate at the date of the order confirmation shall apply.

4.11. In the event of an unforeseeable increase in the cost price, the seller shall be entitled to increase the price accordingly, on the understanding that the buyer has the right to cancel the agreement if the price increase exceeds 10%.

Article 5 Delivery

5.1. Unless agreed otherwise in writing, all deliveries will be made from the nursery in Deurningen (the Netherlands). If goods have not been taken by the buyer upon expiry of the delivery period, they will remain available to the buyer and will be stored at the latter's expense and risk. Any costs related to storing such goods will be for the account of the buyer.

5.2. If the seller and buyer have agreed in writing that delivery will be made on a carriage-paid basis, the following shall apply:

- goods will be transported by the seller to the agreed place on a full loads basis;

- if the seller judges the amount of goods ordered by the buyer to be less than a full load, the delivery in question can  be scheduled only as part of a combined consignment. This means that the delivery date and time will be less flexible and decided by the seller.

5.3. Any deliveries where the seller is responsible for transporting the goods will be carried out on a full loads basis. If the buyer calls only part of its order, resulting in a partial load, the seller shall be entitled to charge the buyer for any additional costs it incurs in consequence. Any orders that do not constitute a full load will be delivered when a combination opportunity arises in the judgement of the seller.

5.4. If delivery is arranged by the seller, the buyer should arrange professional unloading, unless otherwise agreed in writing.

5.5. If the seller delivers on a carriage-paid basis, the maximum unloading time for a full load will be three hours, unless explicitly agreed otherwise in writing. The unloading time for partial loads will be calculated on the basis of the number of loading metres. If these unloading times are exceeded, or if extra unloading addresses are added, the seller shall be entitled to charge for the additional unloading/waiting hours at cost price. Any additional time will be charged per hour, and any part of an hour will be charged as a full hour.

5.6. The cost of any packaging materials will be charged to the buyer in conformity with the prices published by the Foundation for Ancillary Materials. The buyer may return the packaging materials to the seller in a clean and good condition during the same season in which the delivery was made. In this event, the seller will reimburse the buyer for a fixed amount.

5.7. Any ancillary materials, such as rope slings, chains, holsters etc., will be charged for by the seller and will  be credited only after they have been returned in good condition and at the expense and risk of the buyer within one month of delivery.

5.8. Although the delivery time set will be observed as far as possible by the seller, this delivery time should  be regarded only as an estimate and never be taken as a final deadline. The seller will  be in default in respect of the delivery time only after written notice of default has been served by the buyer and then only if the seller has failed to take advantage of the opportunity granted by the buyer still to deliver within a reasonable time.

5.9. The agreed delivery period will commence as soon as an agreement is concluded in accordance with Article 3.2.

5.10. The seller shall not be liable for any loss suffered as a result of late delivery.

5.11. If any payment obligations by the buyer are not met or are not met in good time, the seller's obligation to deliver will be suspended.

5.12. If no delivery period is agreed and delivery is made on call, the buyer is obliged to accept any goods bought for autumn delivery before 15 December of the year concerned. Any goods bought for the spring delivery must be accepted by the buyer as follows:

- bare-root plants before 31 March;

- wire root-balled trees before 30 April;

- pot and container plants before 15 May;

- any plants that are visually attractive between 15 May and 1 June before 1 June;

- the remainder before 1 May.

If goods have not been called before the dates stated above, the provisions of the 2nd and 3rd sentences of Article 5.1 shall apply.

5.14. If a request is made to delay a spring delivery until autumn, all costs incurred to facilitate this will be for the account of the buyer. In addition, the buyer will be charged for at least 50% of the invoice amount at the time such request is made.

5.15. Any notice of call should be sent as early as possible to allow the seller to make all the necessary arrangements in good time. 

5.15. The seller reserves the right to deliver the goods in part, in which case the payment terms set out in Article 7 will be applicable to each part delivery.

Article 6 Transfer of risk

6.1. The goods will be held at the seller's risk up to the moment they are delivered to the buyer, in accordance with the provisions of Article 6.2.
6.2. The risk for the goods sold will be transferred to the buyer:

- from the moment the buyer accepts the goods at the nursery in Deurningen (the Netherlands); 

- from the moment of delivery to the buyer's company, if it has been agreed that the seller will arrange transport;

- from the moment of delivery to the buyer's means of transport, if it has been agreed that the buyer will arrange transport for the goods bought.

- If the seller delivers the goods to a transshipment site at the request of the buyer, the goods will be held at this site at the buyer's risk.

Article 7 Payment

7.1. Unless the parties have agreed otherwise in writing, payment for the goods sold by the seller must take place within 30 days of the invoice date and in the agreed currency.

7.2. The date on which the seller has received payment will be taken as the date of payment. Cash payments may be made only with the seller's consent and to a person authorised to represent the seller by the Trade Register. The receipt issued by the seller will be the only valid proof of such cash payments.

7.3. The buyer shall not be entitled to any deduction, suspension or discount on the grounds of alleged faulty delivery or on the grounds of the fact that delivery remains incomplete or due to any other alleged claim or demand by the buyer. Any right of set-off is also explicitly excluded, unless agreed otherwise by the parties.

7.4. If the payment term is exceeded, the buyer will be legally in default from the moment the due date has passed, without any prior notice of default being required. The seller shall be entitled to charge the legal interest rate for commercial transactions (Article 6:119a of the Dutch Civil Code) from the moment the payment term expires. Any debt recovery costs, both judicial and extrajudicial, will be for the account of the buyer, with extrajudicial costs set at 20% of the amount to be collected subject to a minimum of €750. Extrajudicial costs include all costs of debt recovery investigation, summons and notice of default, all work carried out to reach an out-of-court settlement, as well as the disbursements and fees of the agent appointed by the seller to deal with the claim. If the buyer files for bankruptcy, the costs of the bankruptcy petition will also be payable by the buyer in addition to the principal sum and any related extrajudicial costs and contractual interest.

7.5. Where an order is delivered in parts, the seller shall entitled to demand payment for such part deliveries prior to making the next part delivery.

7.6. No satisfactory payment can be made to employees of the seller who do not have explicit authority to receive payment (as per the Commercial Register of the Chamber of Commerce).

7.7. The seller shall be entitled, on or after entering into the agreement and before performing any further obligations, to demand assurances from the buyer that both payment and other obligations under the purchase agreement will be met. The seller shall entitled to demand an advance or prior payment from the buyer. Any refusal by the buyer to pay an advance or prior payment or to provide the assurances requested will entitle the seller to suspend its obligations and to terminate the agreement in full or in part without giving notice of default or without judicial intervention, without prejudice to its entitlement to compensation for any losses suffered..

7.8. Regardless of any other payment allocation by the buyer, the seller shall be entitled to use payments made by the buyer to first settle any outstanding debts. If any costs and interest have become due on such debts, payment will be used first to settle any extrajudicial costs, then any interest, and only then the principal sum.

Article 8 Cancellation

8.1. The seller shall entitled to cancel an order if, at the moment of delivery, the buyer has not yet promptly fulfilled its earlier payment obligations towards the seller or towards any other creditors. The seller may also exercise this right if the information about the creditworthiness of the buyer is considered unsatisfactory by the seller, or if any advance or prior payments have not been made. In the event of cancellation, the seller shall not be liable towards the buyer on any grounds nor for any loss whatsoever.

8.2. The buyer cannot cancel an order. If the buyer nevertheless cancels an order, in full or in part for whatever reason, the seller will accept this cancellation only if the goods have not yet been released to the carrier for transport and on condition that the buyer pays cancellation costs equal to 50% of the invoice value of the cancelled goods, plus VAT. In that event, the seller will also be entitled to charge for all costs incurred and yet to be incurred at that point (including costs for preparation, care, cancelled transport, storage etc.), without prejudice to the seller's right to compensation for loss of profit and other damages.

8.3. The buyer is obliged to accept the purchased goods at the moment they become available. If the buyer refuses to accept the goods, the seller is entitled to sell the goods elsewhere and the buyer will be liable for the price difference as well as all other costs incurred by the seller as a consequence, including costs for storage, transport etc.

Article 9 Retention of title

9.1. The title to the goods delivered by the seller will not be transferred to the buyer until all amounts invoiced by the seller (including the costs referred to in Article 4.3) have been paid in full, including any interest, penalties and other costs, as well as any demands made as a consequence of the buyer's failure to meet any of its obligations under the purchase agreement or any other agreements.

9.2. The seller shall be entitled to immediately take back the goods if the buyer in any way remains in default of its obligations, including payment obligations. In that event, the buyer is obliged to grant the seller access to its premises and buildings for this purpose. Any costs incurred as a result of repossessing the goods will be for the account of the buyer.

9.3. The buyer must store the goods subject to retention of title separately from other goods, so that the seller's goods may continue to be distinguished from any other goods.

9.4. As long as the delivered goods remain subject to retention of title, the buyer is not permitted to plant the goods, i.e. place them in soil, sell, encumber or pledge the goods or otherwise grant an entitlement to the goods to a third party.

Article 10 Termination and suspension

10.1. The seller shall be entitled to terminate or suspend the agreement for a reasonable period without serving notice of default, judicial intervention or having any obligation to compensate the buyer for any loss if the buyer fails to meet its obligations under the purchase agreement or fails to meet them promptly or satisfactorily, or if a well-founded fear to that effect arises, as well as in the event that the buyer files for suspension of payment, bankruptcy or liquidation or in the event of the dissolution or termination of the buyer's company (if the buyer is a company), or in the event of any changes to the buyer's form of undertaking, the direction of the buyer's company or contribution to the company's activities.

10.2. Any compensation due to the seller for any part of the agreement that has already been performed or for any damages incurred as a result of the termination or suspension of the agreement, including loss of profit, shall become payable immediately without the need to serve prior notice of default.

Article 11 Force majeure

11.1. In the event of force majeure - which includes, but is not limited to, riot, war or threat of war, mobilisation, strike, inclement weather, negligence by the seller's suppliers, growth failure, phytosanitary restrictions, viruses, natural disasters, industrial action, fire or import/export restrictions - or in the event of any other circumstances as a result of which the fulfilment of the agreement by the seller cannot be expected or cannot promptly be expected, the seller shall be entitled, at its discretion, without judicial intervention and by serving written notice, to either terminate the agreement in full or in part, or to suspend the performance of the agreement until such time as the force majeure situation ends.

11.2. If the agreement has already been partly performed by the seller, the buyer will pay for the delivered goods and any associated costs (see Article 4.3) .

11.3. Where the suspension period (pursuant to Article 11.1) exceeds two months and where the seller has not yet performed its obligations, the buyer shall be entitled to terminate the agreement if the seller has failed to comply with a reasonable term for delivery determined in writing by the buyer. In such an event, the buyer will not be entitled to any kind of compensation for loss.

Article 12 Complaints

12.1. The buyer shall be obliged to inspect the goods for any visible and /or directly observable defects immediately upon delivery. Such defects will include any defects that can be observed through normal sensory observation or by simple random checks. In addition, the buyer shall be also obliged to check whether the goods otherwise comply with the order. If, according to the buyer, there is any defect or non-conformity, the buyer must immediately notify the carrier and notify the seller in writing within 8 days (following delivery) (see further Article 12.3). Non-compliance with this obligation to inspect and notify will result in the buyer losing all claims on the seller.  Defects that could not reasonably be observed on delivery shall be notified to the seller in writing, stating the reasons for the complaint, immediately after they have been observed, but in any event not later than three months from the delivery of the goods.

12.2. If the delivered goods vary less than 10% in number, amount and weight from what has been agreed, the buyer shall be obliged to accept delivery regardless. Where any species cannot be delivered, the seller shall be entitled to deliver comparable and/or equivalent species, either in greater or lesser thicknesses and/or sizes, and at correspondingly higher or lower prices. Such a delivery will not constitute a defect.

12.3. Complaints about the quality and quantity of the delivered goods must be submitted in writing by no later than eight calendar days following delivery. Complaints that are not properly submitted will not be considered. As soon as this term has expired, the buyer will be deemed to have approved the delivered goods and no further complaints will be considered. The date shown on the postage stamp, fax or e-mail will be used to determine whether a complaint has been submitted on time.

12.4. 9.3. The buyer should store or plant the goods subject to complaint separately from other goods, so that the seller's goods may continue to be distinguished from any other goods. In addition, the buyer should sufficiently care for and maintain the goods.

12.5. Any complaint should contain a description of the defect and the seller should be permitted to investigate the complaint at its first request. The buyer must allow the seller, on request, to arrange an inspection of the goods concerned by an expert or an independent inspection body. If the expert upholds the complaint, the costs of the inspection will be for the account of the seller. If the complaint is deemed unfounded, the costs will be for the account of the buyer.

12.6. The right to complain may  be exercised only by the seller's direct contractual counterparty, and is not transferable.

12.7. All rights to complain will lapse if the buyer has not satisfactorily cared for and maintained the goods complained of during the period they have been in its possession.

12.8. If the buyer has submitted a prompt and correct complaint to the seller and the seller has acknowledged this complaint, the seller will, at its discretion, be exclusively obliged to deliver any missing goods, replace any delivered goods or reimburse a proportional part of the purchase price. The seller should be granted a reasonable period for any replacement deliveries.

12.9. Submitting a complaint will not suspend the buyer's obligation to pay, unless the seller has agreed such a suspension in writing.

12.10. Returning goods will be done at the expense and risk of the buyer and is  permitted only following the seller's prior written consent.

Article 13 Liability

13.1. Unless otherwise agreed in writing, the seller does not accept any liability for the regrowth or flowering of the delivered goods, or for the unsuccessful taking root or growth of the delivered goods. The responsibility to assess whether circumstances, including those of climate, are suitable for the goods rests with the buyer at all times.

13.2. Except for legal liability pursuant to mandatory provisions or in the event of express intent or deliberate carelessness by the seller's management, the seller does not accept any liability for loss suffered by the buyer. Liability for indirect damage, consequential damage, economic loss, environmental damage, loss of profit or loss as a consequence of liability to third parties is explicitly excluded.

13.3. If and insofar as, for whatever reason and notwithstanding the provisions of Articles 13.1 and 13.2, the seller should be held liable for any damage, this liability will be limited to an amount equal to the net invoice value of the  goods concerned exclusive of VAT, on the understanding that the seller will be liable at most and exclusively for a total amount of €10,000.

13.4. The buyer shall be obliged to inform its customers, if necessary, of the correct treatment of the delivered goods. Where appropriate, the buyer shall be obliged to inform its customers of any dangers attached to the goods, such as their toxicity or any intolerance to the ingestion of the goods and/or parts of the goods.

13.5. The buyer will indemnify the seller for any claims for compensation made by third parties for which the seller bears no liability pursuant to these terms and conditions.

Article 14 Intellectual property rights.

14.1. The seller reserves all its rights in relation to the intellectual property attached to the goods delivered by the seller.

14.2. In those cases where a catalogue used by the seller or the agreement made between the parties indicates that a species is subject to plant breeders' rights, the seller shall be bound to comply with all obligations under such rights. If a species is not subject to plant breeders' rights in the Netherlands but is subject to a patent in the buyer's country, the buyer shall be bound to comply with all obligations under such rights. Any breach of this provision will result in the buyer being held liable for all damages caused to the seller and any third parties (including the owner of the plant breeder's rights).

Article 15 Competent court / applicable law

15.1. All disputes, including those acknowledged by only one of the parties, shall exclusively be heard by the competent judge at the District Court of Overijssel at Almelo. 

15.2. Any offers and quotations provided by the seller and all agreements made between the seller and the buyer, and the performance thereof, will  be subject exclusively to the law of the Netherlands.

15.3. The provisions of the Vienna Convention will not apply to this agreement.