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  • General delivery terms

    • General delivery terms

    Dear customers. Here you can find general delivery terms applicable for our deliveries of fresh cut flowers and potted plants from Holland.

     

    General Terms and Conditions of Delivery for the Wholesale Trade in Floricultural Products

     

    Drawn up by Astra Fund Holland BV.

    I. GENERAL

    1. These General Terms and Conditions of Delivery (to be referred to below as the ‘General Terms and Conditions’) govern any and all offers made by Astra Fund Holland BV (to be referred to below as ‘Astra Fund’) and any and all agreements concluded with a client (to be referred to below as the ‘Buyer’), as well as the performance of such agreements. Astra Fund and the Buyer will be referred to below jointly as the ‘Parties’.

    2. Astra Fund explicitly rejects the applicability of any general terms and conditions (including general terms and conditions of purchase) applied by the Buyer.

    3. Any provisions that deviate from the provisions contained in these General Terms and Conditions must be explicitly agreed by the parties in writing and will be deemed to supplement these General Terms and Conditions insofar as they do not replace the provisions contained in these General Terms and Conditions.

    II. OFFERS/AGREEMENT

    1. Offers and quotations submitted by Astra Fund, either orally or in writing, are without obligation in all cases unless they contain a term for acceptance by the Buyer. If an offer or quotation contains an offer without engagement and the Buyer accepts that offer, Astra Fund will be entitled to revoke the offer within two working days after it receives the acceptance. If the Buyer’s acceptance deviates (whether with respect to minor matters or otherwise) from the offer without engagement that Astra Fund has submitted) Astra Fund will not be bound by that acceptance unless Astra Fund indicates otherwise.

    2. Agreement/contract with the customer based on the terms below is considered concluded for an indefinite period after acceptance by Astra Fund of the first order from the customer in any format used in the industry branche.

    3. Offers and quotations are one-off and do not apply with respect to any repeat orders or future orders, unless the Parties have agreed otherwise.

    III. PRICES

    1. The prices generally will be determined at the time at which the order is accepted. They will be based on the applicable current prices on the basis of supply and demand.

    2. a. The prices are ex works Astra Fund.

    b. The price does not include turnover tax (VAT).

    c. Import duties, other taxes and levies, costs related to quality control and/or phytosanitary inspection, and costs related to loading and unloading, packaging, transport and insurance are not included in the price unless the Parties agree otherwise in writing.

    d. The prices are denominated in euros, unless the invoice indicates a different currency.

    IV. DELIVERY AND DELIVERY TIME

    1. The Buyer must provide Astra Fund, in a timely manner, with any and all information that Astra Fund indicates is necessary or that the Buyer should reasonably understand is necessary in order to perform the agreement. If information that is necessary in order to perform the agreement has not been provided to Astra Fund in a timely manner, Astra Fund will be entitled to suspend the performance of the agreement and/or charge the Buyer for the extra costs that ensue from the delay. Astra Fund is not liable for damage, of any kind whatsoever, as a result of Astra Fund acting on the basis of incorrect and/or incomplete information provided by the Buyer, unless Astra Fund should have been aware that the information was incorrect or incomplete.

    2. Astra Fund is obliged to deliver the agreed quantities, unless the quantity must be reduced as a result of a situation involving force majeure.

    3. Astra Fund will be obliged to notify the Buyer immediately of the situation involving force majeure, in which case it will be entitled to deliver a smaller quantity.

    4. The place of delivery will be deemed to be Astra Fund’s warehouse or processing locale, unless the Parties agree otherwise in writing.

    5. Unless the Parties agree otherwise in writing, the risk related to loss or damage of the products that are the subject of the agreement between Astra Fund and the Buyer will be transferred to the Buyer at the time at which they are legally and/or actually delivered to the Buyer and thereby come under the control of the Buyer or a third party to be designated by the Buyer.

    6. Delivery will be made carriage paid only if and insofar as the Parties have agreed to do so and Astra Fund has indicated that delivery will be made carriage paid in the invoice or order confirmation.

    7. The delivery times that Astra Fund indicates are indicative and under no circumstances may they be deemed to be of the essence, unless the Parties have explicitly agreed otherwise. A delivery time being exceeded will not lead to an entitlement to dissolve the agreement or to any compensation, unless the Parties have agreed otherwise.

    8. Astra Fund will notify the Buyer as quickly as possible if Astra Fund will be unable to comply with one or more of its obligations in whole or in part. In the event that Astra Fund cannot deliver the entire quantity that has been ordered, Astra Fund will be entitled to make a partial delivery or to suspend the performance of the agreement and/or deliver equivalent or similar products in consultation with the Buyer.

    9. In the event that the Buyer fails to accept delivery of the products that it has ordered at the agreed time and place it will be in default and the Buyer will bear the risk related to any loss of quality as a result of storage. The products that have been ordered will be at its disposal and will be stored at its risk and expense. However, if the Buyer has not taken delivery after a limited term of storage, which can be deemed to be reasonable in view of the type of product, has lapsed and Astra Fund is of the opinion that the risk of loss of quality and/or spoilage of the products does not leave any other option open, Astra Fund will be entitled to sell the products in question. The Buyer’s failure to comply will not relieve it from the obligation to pay the purchase price in full. In the event that Astra Fund sells the products the Buyer will be obliged to pay any difference in price that ensues from such as sale in addition to any and all other costs incurred and damage sustained by Astra Fund.

    10. Astra Fund reserves the right not to carry out orders in the event that the Buyer has not paid for prior deliveries within the agreed term for payment. Astra Fund is not liable for any damage that the Buyer sustains as a result of a failure to deliver.

    V. FORCE MAJEURE

    1. In the event of a situation involving force majeure Astra Fund will be entitled to dissolve the agreement in whole or in part or to suspend delivery until the time at which the situation involving force majeure has been alleviated.

    2. Force majeure is taken to mean: any circumstance that is outside Astra Fund’s direct control as a result of which it would be unreasonable to demand that the agreement be performed, which in any event includes (but is not limited to) civil commotion, war, threat of war, terrorism, strikes, fire, extreme weather conditions, natural disasters, epidemics, traffic conditions (including roadworks and traffic jams) or government measures.

    VI . PACKAGING

    1. The products will be packaged in the manner that is customary in the flower and plant wholesale trade industry and the type of packaging will be determined by Astra Fund acting in its capacity as a diligent merchant, unless the Parties have agreed otherwise.

    2. Costs will be charged for non-returnable packaging.

    3. Returnable packaging and other sustainable materials (cardboard boxes, containers, stacking trolleys, etc.) that remain the property of Astra Fund will also be charged for and must be returned. The Buyer will pay the costs of return transport. If such materials are returned properly the costs that have been charged will be credited, possibly decreased by an agreed amount for use.

    4. With respect to sustainable packing materials (stacking trolleys, containers, etc.) that have been loaned to the Buyer for use, Astra Fund reserves the right to subsequently charge the Buyer for the costs of those materials in the event that the Buyer fails to return them and to recover from the Buyer any further damage that the Buyer has caused.

    5. If a deposit is charged it will be set off after the materials in question have been returned properly. The Buyer will pay the costs of the return transport.

    VII. LOADING AND TRANSPORT

    1. Loading and shipment must take place in an efficient manner.

    2. If the Buyer does not stipulate a particular means of transport Astra Fund will choose the most customary means of transport.

    3. The Buyer will be charged for the transport costs.

    4. If a forwarding agent is engaged, Astra Fund will be liable for any damage that arises only until the time at which the products have been handed over to the forwarding agent.

    VIII. COMPLAINTS

    1. Complaints with respect to visible defects in the products that have been delivered must be reported to Astra Fund immediately after the defects have been discovered and in any event within 24 hours after receipt. The Buyer must confirm such a report made by telephone in writing within two days after the products have been received. The time at which Astra Fund receives the written confirmation is determinative in this respect. The Buyer or the receiver of the products must also make a note of the complaint on the relevant transport papers in order to confirm that the complaint existed at the time at which the products were delivered.

    2. Complaints with respect to invisible defects in the products must be reported to Astra Fund immediately after the defects are discovered and in any event they must be submitted to Astra Fund in writing in a timely manner such that Astra Fund is able to investigate (or have investigated) the veracity of the complaints in question on location and/or to take back the products that have been delivered.

    3. The complaints must contain at least:

    a. a detailed and precise description and photographs of the defect; and

    b. a statement of any further facts from which it can be inferred that the products that have been delivered and the products that the Buyer has rejected are identical.

    4. Astra Fund must be allowed at all times to investigate (or have investigated) the veracity of the complaints in question on location and/or to take back the products that have been delivered. The products must be kept available in the original packaging.

    5. Complaints with respect to only some of the products that have been delivered will not give cause to reject the entire delivery.

    6. After the terms referred to above have expired the Buyer will be deemed to have approved the products that have been delivered and the invoice, in which case Astra Fund will no longer accept any complaints.

    IX. LIABILITY

    1. Astra Fund is not liable for any damage that the Buyer sustains, except insofar as the Buyer demonstrates that there has been an intentional act or omission or gross negligence on the part of Astra Fund.

    2. Any defects with respect to any phytosanitary requirement and/or other requirements that apply in the importing country will not entitle the Buyer to any compensation or to dissolve the agreement unless the Buyer has informed Astra Fund in writing of those requirements prior to the time at which the agreement was concluded.

    3. Under no circumstances will Astra Fund be liable for any trading loss, loss due to delay, loss of profit, loss due to business interruption or other indirect or consequential damage sustained by the Buyer. However, if Astra Fund is nonetheless obliged to compensate its damage (in any form whatsoever), Astra Fund’s liability is explicitly limited to the amount of the invoice, exclusive of VAT, with respect to the part of the delivery to which the damage relates.

    4. Unless otherwise indicated the products that are delivered are intended exclusively for decorative purposes and are not suitable for internal use. Astra Fund would note that in the event that the products are incorrectly used, consumed or handled and/or in the event of oversensitivity, the products may have harmful effects on humans and/or animals. The Buyer is obliged to communicate this warning to its customers and indemnifies Astra Fund against any and all claims brought by third parties, including end users, with respect to such consequences.

    X. PAYMENT

    1. Payment must be made, by means of payment in advance

    Astra Fund will charge any bank charges on to the Buyer.

    2. The Buyer is not entitled to deduct from any amount the purchase price to be paid on the ground of a counterclaim that it has brought. The Buyer may not suspend payment of the purchase price that it owes on the ground of a complaint with respect to the products that have been delivered or with respect to the amount of the invoice.

    3. The Buyer will be in default merely as a result of the agreed term for payment being exceeded, in which case Astra Fund will be entitled to dissolve the agreement effective immediately merely by giving notice to the Buyer (express termination clause). Astra Fund will not owe the Buyer any compensation whatsoever with respect to the consequences that such a dissolution may have for the Buyer.

    4. Astra Fund’s claims against the Buyer will be immediately due and payable in the event that the Buyer is liquidated or goes bankrupt, an attachment is levied against the Buyer or the Buyer is granted a suspension of payments.

    5. In the event that the Buyer is in default Astra Fund will be entered to charge 1.5% interest per month from the due date of the invoice until the date on which payment is made in full, or the statutory interest if that rate is higher.

    6. In the event that the Buyer is in default Astra Fund will also be entitled to charge any exchange rate loss that is sustained as a result.

    7. Astra Fund is entitled to apply payments made by the Buyer first towards the payment of the costs (such as the costs related to any exchange rate loss), subsequently towards the interest that is due and finally towards the principal amount and the accrued interest. Astra Fund may refuse an offer to make payment, without its being in default as a result, in the event that the Buyer designates a different order for the allocation of a payment. Moreover, Astra Fund may refuse the full payment of the principal amount in the event that the outstanding and accrued interest and the costs are not paid as well.

    8. If it is necessary to engage third parties in order to obtain payment, the ensuing judicial costs, enforcement costs and/or extrajudicial costs – subject to a minimum of 15% of the outstanding amount – will be immediately due and payable and owed by the Buyer. In the event that Astra Fund has incurred higher costs and it was reasonably necessary to do so, such costs must also be reimbursed by the Buyer. The Buyer will owe interest on the costs that are incurred.

    XI. RETENTION OF TITLE

    1. All the products that are delivered will remain the property of Astra Fund until all Astra Fund’s claims against the Buyer have been paid in full.

    2. As long as the products have not been paid for the Buyer may not pledge them or otherwise furnish them as security. The Buyer must notify Astra Fund immediately in the event that third parties levy an attachment (or wish to levy an attachment) on those products or otherwise wish to levy execution against them.

    3. When Astra Fund’s rights pursuant to the retention of title are exercised the Buyer will fully cooperate in all cases and at its own expense immediately upon request. The Buyer is liable for any and all costs that Astra Fund sustains in connection with its retention of title and the related actions that it must take and for any and all direct and indirect damage that Astra Fund sustains.

    4. Moreover, the following provisions will apply if it is possible to apply them pursuant to the laws of the country where the Buyer has its registered office and/or where the products have been delivered to the Buyer:

    a. In the event that the Buyer commits breach of contract Astra Fund will be entitled to immediately take possession of the products that have been delivered and the related packaging and transport materials and to have them at its disposal at its own discretion. This implies a dissolution of the agreement in question if the law so provides.

    b. The Buyer is entitled to sell the products in the course of the normal operation of its business (but it may not use them as a means of payment). It hereby transfers any and all claims that it acquires as a result of the sale to a third party. Astra Fund accepts that transfer and reserves the right to collect the claim itself as soon as the Buyer has failed to properly comply with its payment obligations and, insofar as necessary, is in default.

    c. The Buyer is entitled to process the products in the course of its normal business operations, possibly together with products that did not come from Astra Fund. Astra Fund will obtain ownership (or co-ownership) of the new, resulting good in the ratio in which Astra Fund’s products form part of them, which ownership the Buyer hereby transfers to Astra Fund and which Astra Fund hereby accepts.

    d. If the law provides that Astra Fund must waive part of the security that has been stipulated upon request in cases in which the security exceeds the value of the outstanding claims by a certain percentage, Astra Fund will comply with such a request as soon as the Buyer requests it to do so and that appears from Astra Fund’s accounting records.

    XII. APPLICABLE LAW/DISPUTES

    1. All agreements that are governed in whole or in part by these General Terms and Conditions are governed by Dutch law, and the provisions contained in the Vienna Sales Convention are explicitly excluded.

    2. The Buyer will be entitled to submit any disputes with respect to or that ensue from any offers, quotations and/or agreements that are governed by these General Terms and Conditions only to the Dutch court that has jurisdiction in the territory in which Astra Fund has its registered office. Astra Fund is entitled to submit disputes to both the competent court in the territory in which it has its own registered office and the competent court in the territory in which the Buyer has its registered office.

    3. Notwithstanding the provisions contained in Article XII(2), Astra Fund and the Buyer may agree to submit a dispute to an arbitration tribunal that acts in accordance with the arbitration rules of the Netherlands Arbitration Institute (Nederlands Arbitrage Instituut) and both parties will accept the decision of that tribunal as binding.

    XIV. FINAL PROVISIONS

    1. Dutch law also applies in respect of any matters that are not provided for in these General Terms and Conditions.

     

    2. If and insofar as any part of or any provision contained in these General Terms and Conditions is invalid under Dutch law in connection with its being contrary to any mandatory statutory provision, the remaining provisions contained in these General Terms and Conditions will continue to be binding. In such cases the Parties will act as though, had they been aware of the invalidity of the provision in question, they had agreed on a provision that has the intention of the invalid provision or a provision that is a close as possible to that intention.