Royal Trade Association for Tree Nursery and Bulb Products (ANTHOS)
GENERAL TERMS AND CONDITIONS OF SALE AND DELIVERY

1. Applicability
1.1. These terms and conditions apply only to agreements in which one of the parties is a member of Anthos at the time the agreement is concluded; for the purposes of these general terms and conditions, this also includes other companies that are directly or indirectly affiliated with a company that is a member of Anthos (for example, sister companies, subsidiaries, or parent companies of the member).
1.2. If an agreement refers to these terms and conditions, and only non-members are parties to that agreement, the terms and conditions set forth below do not apply, and such action would also constitute a violation of the law and copyright, unless Anthos has granted written permission to that effect.
1.3. All offers made by the seller, all sales agreements entered into with the seller, and the performance thereof are governed by these terms and conditions.
1.4. The applicability of any other terms and conditions, including the buyer’s general terms and conditions, is expressly excluded.
1.5. Any deviation from these terms and conditions may be invoked only if the seller has expressly agreed to it in writing, and it applies exclusively to the agreement in question.
1.6. To the extent that these general terms and conditions are also drafted in a language other than Dutch, the Dutch text shall always prevail in the event of any discrepancies.
1.7. In these terms and conditions, ‘in writing’ means: by letter, by fax, or electronically.

2. Offers and Formation of a Contract
2.1 All offers and price quotes made by the seller are nonbinding.
2.2 A contract is not concluded until the seller has confirmed the order in writing and has also accepted in writing any agreed payment security, including an irrevocable (confirmed) letter of credit. Every agreement is entered into by the seller subject to the condition precedent that the buyer, at the sole discretion of the seller’s credit insurer, is deemed sufficiently creditworthy to fulfill the financial obligations under the agreement.
2.3 Any additional agreements or amendments made at a later date, as well as verbal commitments made by the seller’s staff or on its behalf by its agents or other representatives working for it, are binding on the seller only once it has confirmed them in writing.

3. Prices
3.1 All prices for the goods are set in the agreed-upon currency, exclusive of sales tax, and are based on ex works (place of business), the Netherlands (EXW, Incoterms 2010), unless otherwise agreed in writing.
3.2 If, after the order confirmation but before delivery of the products, one or more of the factors affecting the cost price change, the seller reserves the right to adjust the agreed prices accordingly.
3.3. The costs related to transportation, packaging, insurance, and inspections by the NVWa and/or Naktuinbouw shall be borne by the buyer. All levies and/or taxes that are or will become due, either directly or indirectly, as a result of the agreement concluded between the seller and the buyer, shall be borne exclusively and in full by the buyer and may not be deducted from the amounts owed to the seller.
3.4 If the seller and the buyer agree that the price will be denominated in a currency other than the euro, the euro exchange rate in effect on the date of the order confirmation shall apply.

4. Payment
4.1 Unless the parties have agreed otherwise in writing, payment for the goods sold by the seller must be made within 30 days of the invoice date in the agreed-upon currency.
4.2 The date of payment is the value date on which the seller receives the payment. For bank transfers, the date of payment is the day on which the amount is credited to the seller’s bank account.
4.3 The buyer is not entitled to any deduction, suspension, or payment discount, and any claim for set-off is expressly excluded unless otherwise agreed. If the payment term is exceeded, the buyer shall be in default by operation of law as of the expiration of the payment term. The seller is entitled to charge the statutory interest rate for commercial transactions as of the due date, while all costs incurred in connection with collection—both judicial and extrajudicial—shall be borne by the buyer; the latter costs shall be set at a minimum of 15% of the amount to be collected, with a minimum of 250 euros.
4.4 If an order is fulfilled in installments, the seller is entitled to demand payment for each partial delivery before making the remaining partial deliveries.
4.5 The seller is entitled, upon or after the conclusion of the agreement, before performing (further) obligations, to require security from the buyer to ensure that both payment obligations and other obligations under this agreement are fulfilled. The Buyer’s refusal to provide the requested security entitles the Seller to suspend its obligations and ultimately entitles it to terminate the agreement in whole or in part without notice of default or judicial intervention, without prejudice to its right to compensation for any damages it may have suffered.
4.6 The Seller has the right, notwithstanding any other designation of the payment by the Buyer, to first apply payments toward older debts. If costs and interest have already accrued, the payment will first be applied to the costs, then to the interest, and only then to the principal.

5. Delivery
5.1 Unless otherwise agreed in writing, all deliveries shall be made ex works (place of business), the Netherlands (EXW, Incoterms 2010).
5.2 Although the specified delivery time will be adhered to as much as possible, this delivery time is only approximate and can never be considered a strict deadline. The seller shall not be deemed to be in default with respect to the delivery time until the buyer has given the seller written notice of default, has thereby given the seller the opportunity to still deliver within a reasonable period, and the seller has failed to do so.
5.3 The agreed delivery period begins as soon as a contract has been concluded in accordance with Article 2.2.
5.4 The Seller shall not be liable for damages resulting from a delay in delivery if and to the extent that such delay is attributable to circumstances that are not at the Seller’s expense and risk, including failure by suppliers to fulfill their obligations (on time).
5.5 Failure by the buyer to fulfill any payment obligation (on time) shall suspend the seller’s obligation to deliver.
5.6 If no delivery deadlines have been agreed upon and delivery is made on call, the seller has the right to make fall deliveries before December 15 of the relevant year and spring deliveries after April 1.
5.7 Bare-root plants must be delivered by April 15, and potted and container plants by May 15. Any exceptions must be communicated in writing. For on-call deliveries, the seller always has the right to deliver root-ball and potted plants after May 15. For agreements entered into after May 15, the seller has the right to deliver within 14 days.
5.8 If a request is made to postpone the fall delivery until after December 15, the price will be increased by 3%.

5.9 If a request is made to postpone the spring delivery until the fall, all costs incurred to make this possible will be borne by the buyer. In addition, the buyer will be charged at least 50% of the invoice amount at that time.
5.10 The Seller reserves the right to deliver the goods in installments, in which case the terms and conditions (including payment terms) set forth in Article 4 shall also apply to each partial delivery.

6. Force Majeure
6.1 In the event of force majeure—which includes, among other things, crop failure, viruses, natural disasters, strikes, fire, import and export restrictions—or in the event of other circumstances that prevent the seller from fulfilling the agreement or from doing so in a timely manner, the seller shall have the right, at its discretion, without judicial intervention and without being liable for any damages, by means of a single written notice, either to terminate the agreement in whole or in part or to suspend the performance of this agreement until such time as the force majeure situation has come to an end.
6.2 If the seller has already partially fulfilled the contract, the buyer shall pay the sales price of the goods delivered.

7. Advertisements
7.1 The buyer is required to inspect the goods upon delivery for visible and/or immediately detectable defects. This includes all defects that can be detected through normal sensory perception or a simple random inspection. Furthermore, the buyer is obligated to verify that the delivered goods also comply with the order in all other respects. Failure to comply with this inspection obligation will result in the buyer forfeiting any and all claims against the seller.
7.2 If the goods delivered deviate by less than 10% in terms of number, quantity, or weight from what was agreed upon, the buyer shall nevertheless be obligated to accept the goods delivered.
7.3 Complaints regarding the quality and quantity of the delivered goods must be submitted in writing no later than eight calendar days after delivery. Defects that can only be discovered at a later stage (hidden defects) must be reported to the seller immediately upon discovery, but in any case before the end of the first growing season following delivery. Once these deadlines have passed, the buyer is deemed to have accepted the delivered goods, and complaints will no longer be considered.
7.4 The complaint must include a description of the defect, and the seller must be given the opportunity to investigate the complaint upon first request.
The buyer must allow the seller to have the goods in question inspected by an expert or an independent inspection agency. If the expert finds the complaint to be valid, the seller shall bear the costs of the inspection. If the complaint is found to be invalid, the buyer shall bear the costs.
7.5 If the buyer has reported a complaint to the seller in a timely manner and the seller has acknowledged the complaint, the seller is, at its option, solely obligated to deliver the missing items, replace the goods delivered, or refund a proportionate portion of the purchase price.
7.6 Filing a complaint does not suspend the buyer’s obligation to pay, unless the seller expressly agrees to such a suspension.
7.7 The return of the goods is at the buyer’s expense and risk and may only take place with the seller’s prior written consent.

8. Liability
8.1. The seller shall never be liable for the regrowth or flowering of the delivered goods. It is always the buyer’s responsibility to assess whether the conditions—including climatic conditions—are suitable for the goods.
8.2. The seller guarantees that the plants it delivers are of the correct variety.

8.3. Plant names are described in accordance with the List of Names of Woody Plants and the List of Names of Perennials published by PPO in Lisse.
8.4 Except for statutory liability based on mandatory provisions and except in cases of willful misconduct or gross negligence, the seller shall never be liable for any damages suffered by the buyer. Liability for indirect damages, consequential damages, non-pecuniary damages, business interruption, environmental damages, damages due to lost profits, or damages resulting from liability toward third parties is further expressly excluded.
8.5 If and to the extent that, notwithstanding the provisions of Article 8.4, the seller bears any liability, for whatever reason, such liability shall be limited to an amount equal to the net invoice value of the goods in question.
8.6 The buyer shall indemnify the seller against any claims by third parties for compensation for damages for which the seller is not liable under these terms and conditions.
8.7 The Buyer shall indemnify the Seller against any claims by third parties for damages arising in connection with products delivered by the Buyer to such third parties, unless it is legally established that such claims are a direct result of gross negligence or willful misconduct on the part of the Seller and the Buyer further demonstrates that it bears no blame whatsoever in this regard.
8.8. If latent infections are present in the plant, this shall be considered a non-attributable defect on the part of the seller, unless the buyer demonstrates a) that there was intent or gross negligence on the part of the seller that caused these latent infections, or b) that the seller was aware of these latent infections prior to the sale but nevertheless failed to inform the buyer thereof.

9. Cancellation
9.1. The seller has the right to cancel an order if, at the time of delivery, the buyer has not yet fulfilled its prior payment obligations to the seller or to other creditors in a timely manner. The seller may also exercise this right if the seller considers the information regarding the buyer’s creditworthiness to be insufficient. The buyer cannot derive any rights from such cancellations, and the seller shall never be held liable by the buyer in this regard.
9.2. In principle, the buyer may not cancel an order. If the buyer nevertheless cancels an order in whole or in part, for whatever reason, the seller will be required to accept such cancellation only if the goods have not yet been handed over to the carrier for shipment and provided that the buyer pays cancellation fees, which shall be at least equal to 30% of the invoice value of the canceled goods, plus VAT. In such a case, the seller is also entitled to charge for all costs incurred up to that point and to be incurred thereafter (including, but not limited to, costs of preparation, handling, storage, and the like), without prejudice to the seller’s right to compensation for loss of profit and other damages.
9.3. The buyer is obligated to accept the purchased goods at the time they are made available to the buyer. If the buyer refuses to accept them, the seller is entitled to sell these goods elsewhere, and the buyer is liable for the difference in price as well as for all other costs incurred by the seller as a result, including storage costs.

10. Retention of Title
10.1. Title to the goods delivered by the seller shall not pass to the buyer until full payment has been made of all amounts invoiced by the seller, including any interest, penalties, and costs, as well as all claims arising from the Buyer’s failure to fulfill its obligations under this agreement or other agreements. The issuance of a check or other negotiable instrument shall not be considered payment in this regard.
10.2 The seller is entitled to immediately reclaim the goods sold if the buyer fails in any way to fulfill its (payment) obligations. In that case, the buyer is obligated to grant the seller access to its premises and buildings for that purpose.

10.3 The buyer must store the goods subject to retention of title separately from other goods in order to be able to continue to distinguish them from the seller’s goods.
10.4 As long as the delivered goods are subject to a retention of title, the buyer may not
outside the normal course of business, may not dispose of, encumber, or pledge
otherwise place them under the control of third parties.
However, the buyer is not permitted to dispose of the goods in the course of its normal business operations if the buyer has filed for a stay of payments or has been declared bankrupt.

11. Penalties
11.1 The Buyer warrants that it complies and will continue to comply with all obligations and restrictions arising from all applicable sanctions regulations of the United Nations, the United States of America, the European Union, the Netherlands, and any other country that is or may become relevant to the performance of the agreement entered into (“Sanctions Legislation”).
11.2 In particular, the buyer warrants that it will not, directly or indirectly, sell, transfer, deliver, or otherwise make the purchased goods available to persons (natural or legal), entities, groups, or (governmental) organizations that are subject to sanctions under the Sanctions Legislation.
11.3 The buyer shall ensure that all obligations under this section are imposed equally on any party to whom the buyer resells or delivers goods purchased from the seller.
11.4 If the buyer fails to fulfill, or fails to fulfill in a timely or proper manner, the obligations arising for him under this article, the seller shall have the right, without notice of default, to suspend or terminate the agreement with immediate effect, without any obligation on the part of the seller to pay compensation and with the buyer being fully liable for damages to the seller, all at the seller’s discretion.

12. Anti-Corruption
12.1 The Buyer shall at all times comply with all obligations and restrictions arising from all applicable anti-corruption laws of the United States of America, the United Kingdom, the Netherlands, and any other country that is or may become relevant to the performance of the agreement entered into (“Anti-Corruption Laws”).
12.2 Any offer to, or acceptance by, employees or members of the customer’s board of directors of money, gifts, presents, travel, entertainment, or other compensation related to the agreement or the seller, and which is intended to, or may be viewed as, an inducement to act in a certain way, is strictly prohibited.
12.3 The customer shall not, directly or indirectly, offer, promise, or give anything to any political party, campaign, government agency, public official, or to (employees of) public institutions, state-owned enterprises, organizations, international institutions for the purpose of obtaining or retaining business or any other improper advantage in connection with the agreement or the seller.
12.4 In connection with the agreement or the seller, the buyer shall not offer, promise, give, or accept anything related to a business relationship, unless there is a legitimate basis for doing so, it is reasonable in the context of day-to-day business operations, and it otherwise complies with local laws.
12.5 The Buyer shall immediately notify the Seller if it becomes aware of any situation arising in the performance of the agreement that may violate anti-corruption laws.
12.6 If the buyer fails to fulfill, or fails to fulfill in a timely or proper manner, the obligations arising for him under this article, the seller shall have the right, without notice of default, to suspend or terminate the agreement with immediate effect, without any obligation on the part of the seller to pay compensation and with the buyer being fully liable for damages to the seller, all at the seller’s discretion.
13. Termination and Suspension
13.1 If the buyer fails to fulfill, or fails to fulfill in a timely or proper manner, the obligations arising for him under the concluded agreement, or if there is reasonable cause to fear such a failure, as well as in the event of a petition for a stay of payments, bankruptcy, or liquidation of the buyer’s business, as well as in the event of the buyer’s death or the dissolution or termination of the buyer, if the buyer is a corporation, or if a change occurs in its corporate structure, in the management of the corporation, or in the scope of the corporation’s activities, the seller shall have the right, without notice of default and without judicial intervention, to suspend the agreement for a reasonable period or to terminate the agreement without any obligation to pay damages
13.2 The seller’s claim with respect to the portion of the agreement already performed, as well as any damages resulting from the suspension or termination of the agreement, including lost profits, is immediately due and payable.

14. Intellectual Property Rights
14.1. The Seller reserves all intellectual property rights it holds in connection with the goods it has delivered.
14.2 In cases where it is evident from the catalog used by the seller or from the agreement entered into by the parties that a variety is protected by plant breeders’ rights—as indicated by the notation (R)/PBR after the name of the variety in question—the buyer is bound by all obligations related to that right. A violation of this provision will result in the buyer being liable for all damages incurred by the seller and third parties as a result.

15. Conflict with Legal Provisions
If any provision of these General Terms and Conditions of Sale and Delivery is inapplicable or contrary to public policy or the law, only that provision shall be deemed not to have been written, but the terms and conditions shall otherwise remain in full force and effect.
The seller reserves the right to amend the disputed provision to make it legally valid.

16. Competent Court / Governing Law
16.1 All disputes, including those deemed as such by only one of the parties, shall be subject to the jurisdiction of the court with jurisdiction within the seller’s place of business, without prejudice to the seller’s right to bring the dispute before another competent court if it so desires.
16.2 The provisions of Article 14.1 do not affect the Seller’s right to obtain a ruling through arbitration by the International Chamber of Commerce in accordance with the International Chamber of Commerce Rules of Arbitration, conducted by a single arbitrator. The place of arbitration shall be Amsterdam, the Netherlands. The arbitration proceedings shall be conducted in English.
16.3 All offers and quotations made by the seller, as well as all agreements entered into between the buyer and the seller, are governed exclusively by Dutch law.

Art. 8.8 added in February 2017
Articles 11 and 12 added in January 2018