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

1. Applicability
1.1. These terms and conditions only apply to agreements where one of the parties is a member of Anthos at the time of conclusion of the agreement, which for the purpose of these general terms and conditions is also deemed to include other companies which are directly or indirectly affiliated with an Anthos member company (e.g. sister, subsidiary or parent companies of the member).
1.2. If an agreement refers to these terms and conditions, and this agreement involves only non-members, the terms and conditions listed below do not apply and are also in violation of the law and copyright law, unless Anthos has given written permission.
1.3. All offers made by the seller and all purchase agreements concluded with him and the performance thereof shall be governed by these terms and conditions.
1.4. The applicability of other conditions including the buyer’s general terms and conditions is expressly excluded.
1.5. A deviation from these terms and conditions may only be invoked if the seller has expressly agreed to it in writing and shall relate exclusively to the agreement in question.
1.6. Insofar as these general terms and conditions have also been drawn up in a language other than Dutch, the Dutch text shall always prevail in the event of differences.
1.7. In these terms and conditions, “in writing” means by letter, telefax or electronically.

2. Offers and formation of agreement
2.1 All offers and quotations made by the seller are without obligation.
2.2 An agreement is not concluded until the seller has confirmed the order in writing and any agreed payment security, including an irrevocable (confirmed) letter of credit, has also been accepted by the seller in writing. Each contract is entered into by the seller under the resolutive condition that the buyer, at the sole discretion of the seller’s credit insurer, proves to be sufficiently creditworthy for the monetary performance of the contract.
2.3 Any additional agreements or amendments made at a later date, as well as verbal promises made by the Seller’s personnel or made on its behalf by its agents or other representatives working for it, shall only bind the Seller from the moment they are confirmed by it in writing.

3. Prices
3.1 All prices for the goods are fixed in the agreed currency, excluding sales tax and are based on ex works, (place of business), 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 cost price determining factors undergo a change, the seller reserves the right to adjust the agreed prices accordingly.
3.3. The costs related to transport, packaging, insurance and inspection by the NVWa and/or Naktuinbouw will be borne by the buyer. All levies and/or taxes due or to become due on account of the contract entered into by the seller with the buyer, both direct and indirect, shall be exclusively and fully borne by the buyer and may not be deducted from the amounts due to the seller.
3.4 If the seller and the buyer agree that the price is in a currency other than the Euro, the Euro exchange rate on the date of the order confirmation shall apply.

4. Payment
4.1 Unless the parties have agreed otherwise in writing, payment for goods sold by the seller shall be made within 30 days of the invoice date in the agreed currency.
4.2 The date of payment is the value date on which the seller receives the payment. In case of payment by bank, the date of payment shall be the day of crediting the seller’s bank account.
4.3 The buyer shall not be entitled to any deduction, suspension or payment discount, and recourse to set-off is also expressly excluded unless otherwise agreed. If the payment term is exceeded, the buyer shall be in default by operation of law from the expiration of the payment term. The seller shall be entitled to charge statutory interest for commercial transactions from the due date, while all costs relating to collection shall also be borne by the buyer, both judicial and extrajudicial, the latter being set at a minimum of 15% of the amount to be collected, with a minimum of 250 euros.
4.4 In the event that an order is executed in parts, the seller is entitled to demand payment for the partial deliveries before making the remaining partial deliveries.
4.5 Upon or after entering into the agreement, the seller is entitled to require security from the buyer, before (further) performance, that both payment and other obligations under this agreement will be fulfilled. Refusal by the buyer to provide the requested security shall entitle the seller to suspend its obligations and shall ultimately entitle it to rescind the agreement in whole or in part without notice of default or judicial intervention, without prejudice to its right to compensation for any damage suffered by it.
4.6 The Seller has the right, despite other destination of payment by the Buyer, to set off payments first against older debts. If costs and interest have already accrued, the payment shall first offset the costs, then the interest and only then the principal sum.

5. Delivery
5.1 Unless otherwise agreed in writing, all deliveries shall take place ex works (place of business), The Netherlands (EXW, Incoterms 2010).
5.2 Although the stated delivery time will be observed as much as possible, this delivery time is only approximate and can never be considered a deadline. The seller shall not be in default with respect to the delivery time until after it has been given written notice of default by the buyer, the latter has hereby given it the opportunity to still deliver within a reasonable period and the seller has failed to do so.
5.3 The agreed delivery period shall commence as soon as a contract has been concluded in accordance with Article 2.2.
5.4 The vendor shall not be liable for damage as a result of late delivery if and insofar as such late delivery is due to circumstances that are not for the vendor’s account and risk, including non-performance or late performance by suppliers.
5.5 Buyer’s failure to fulfill any payment obligation (on time) shall suspend seller’s obligation to deliver.
5.6 If no delivery terms have been agreed upon and delivery is on call, the seller shall be entitled to make autumn deliveries before December 15 of the relevant year and spring deliveries after April 1.
5.7 Roots must be delivered by April 15 and potted and container plants by May 15. Deviations must be communicated in writing. For deliveries on demand, seller always has the right to deliver root ball and potted plants after May 15. For agreements established after May 15, the seller has the right to deliver within 14 days.
5.8 In the event of a request to postpone autumn delivery beyond December 15, the price will be increased by 3%.

5.9 In the event of a request to delay spring delivery until autumn, all costs incurred to make this possible shall be borne by the buyer. In addition, the buyer is already charged a minimum of 50% of the invoice amount at that time.
5.10 Seller reserves the right to deliver the goods in parts, in which case the (payment) conditions described in Article 4 also apply to each partial delivery.

6. Force Majeure
6.1 In case of force majeure – as such are considered failures in cultivation, viruses, natural disasters, strikes, fire, import and export obstructions – or in case of other circumstances as a result of which fulfilment of the contract by the seller cannot be demanded or cannot be demanded in time, the seller has the right, at his choice without legal intervention and without being obliged to pay any compensation, to either terminate the contract wholly or partly or to suspend the execution of this contract until the situation of force majeure has ended.
6.2 If the agreement has already been partially executed by the seller, the buyer shall pay the sales price of the delivered goods.

7. Advertisement
7.1 Buyer is obliged to examine the goods upon delivery for visible and/or immediately observable defects. As such are considered all defects that can be detected by normal sensory perception or simple sampling. Furthermore, the buyer is obliged to check whether the delivered goods are in accordance with the order in other respects as well. By failing to comply with the verification requirement, the buyer loses any claims against the seller.
7.2 If the delivered goods deviate less than 10% in number, quantity and weight from what was agreed upon, the buyer shall nevertheless be obliged to accept the delivered goods.
7.3 Complaints concerning quality and quantity of the delivered goods must be submitted in writing and at the latest within eight calendar days after delivery. Defects that can only be discovered at a later stage (non-visible defects) must be reported to the seller immediately after discovery but in any case before the end of the first growing season after delivery. Once these deadlines have been exceeded, the buyer is deemed to have approved the delivery and complaints will no longer be considered.
7.4 The complaint must contain a description of the defect and the seller must be given the opportunity to investigate the complaint at first request.
The buyer must allow the seller to arrange for an inspection of the goods in question by an expert or an independent inspection body. If the complaint is upheld by the expert, the costs of the inspection shall be borne by the seller. If declared unfounded, the costs shall be borne by the buyer.
7.5 If the buyer has timely reported a complaint to the seller and the seller has acknowledged the complaint, the seller, at its option, shall only be obliged to deliver what is missing, replace the delivered goods or return a proportionate part of the purchase price.
7.6 The filing of a complaint does not suspend the buyer’s obligation to pay unless the seller expressly agrees to such suspension.
7.7 Returning the goods shall be at the expense and risk of the buyer and can only take place with the seller’s prior written consent.

8. Liability
8.1. The seller shall never be liable for regrowth or flowering of the delivered goods. It is at all times the responsibility of the buyer to assess whether conditions, including climatic, are suitable for the goods.
8.2. The seller guarantees the authenticity of the species of the plants he supplies.

8.3. Plant names are described according to the Nomenclature of Woody Crops and the Nomenclature of Perennials published by PPO in Lisse.
8.4 Except for legal liability under mandatory provisions and except in the case of intentional acts or gross negligence, the seller shall never be liable for any damage suffered by the buyer. Liability for indirect damage, consequential damage, immaterial damage, trading loss, environmental damage, damage due to loss of profit or damage as a result of liability towards third parties is also expressly excluded.
8.5 If and insofar as, notwithstanding the provisions of Article 8.4, any liability rests with the Seller, for whatever reason, such liability shall be limited to the amount equal to the net invoice value of the goods in question.
8.6 The buyer shall indemnify the seller against third party claims for compensation for damages for which the seller is not liable under these terms and conditions.
8.7 The Buyer indemnifies the Seller against any claims by third parties for damage occurring in connection with products delivered by the Buyer to these third parties, unless it is established in law that these claims are a direct result of gross negligence or wilful misconduct on the part of the Seller and the Buyer also proves that he is not at all to blame in this regard.
8.8. If latent infections are present in the plant, this shall constitute a non-attributable failure on the part of Seller, unless Buyer demonstrates (a) that there was intent or gross negligence on the part of the seller which caused these latent infections or (b) that seller was aware of these latent infections prior to purchase but nevertheless failed to inform buyer about them.

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 his earlier payment obligations to the seller or to other creditors. The seller may also exercise this right if information regarding the buyer’s creditworthiness is deemed insufficient by the seller. The buyer cannot derive any rights from such cancellations and will never be held liable by the seller.
9.2. In principle, cancellation of an order by the buyer is not possible. If the buyer nevertheless cancels all or part of an order, due to any cause whatsoever, the seller shall only be required to accept this when the goods have not yet been handed over to the carrier for shipment and on condition that the buyer pays a cancellation fee equal to at least 30% of the invoice value of the cancelled goods plus VAT. In that case, the seller shall also be entitled to charge all costs incurred and to be incurred up to that time (including costs of preparation, care, 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 obliged to take delivery of the purchased goods at the time they are made available to him. If the buyer refuses to accept them, the seller shall be entitled to sell these goods elsewhere and the buyer shall be liable for the difference in price as well as for all other costs resulting from this for the seller, including storage costs.

10. Retention of title
10.1. Ownership of the goods delivered by Seller shall not pass to Buyer until after full payment of all amounts invoiced by Seller with any interest, penalties and costs as well as all claims for failure to fulfill Buyer’s obligations under this contract or other agreements. Issuance of a check or other commercial paper does not constitute payment in this context.
10.2 The seller is entitled to take back the sold goods immediately, if the buyer fails to meet his (payment) obligations in any way. In such a case, the buyer shall be obliged to grant the seller access to this end on its premises and in its buildings.

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 the Seller’s goods.
10.4 As long as the delivered goods are subject to retention of title, the buyer may not
outside its ordinary course of business not alienate, encumber, pledge or
otherwise bring into the control of third parties.
However, the buyer shall not be permitted to dispose of the goods in the ordinary course of business at the time when the buyer has applied for a moratorium or the buyer has been declared bankrupt.

11. Sanctions
11.1 Buyer warrants that it has complied and will continue to comply with all obligations and restrictions resulting from all applicable sanctions regulations of the United Nations, the United States of America, the European Union, the Netherlands and of any other country that is or may become relevant to the performance of the concluded agreement (“Sanctions Legislation”).
11.2 In particular, the buyer guarantees that it will not directly or indirectly sell, transfer, deliver, or otherwise make the purchased goods available to (legal) persons, entities, groups or (governmental) organizations sanctioned under Sanctions legislation.
11.3 The buyer shall ensure that all obligations under this article will be imposed equally on each party to whom it resells or delivers goods it has procured from the seller.
11.4 If the buyer does not, does not timely or does not properly comply with the obligations arising for him from this article, the seller shall have the right, without notice of default, to suspend or terminate the agreement with immediate effect without any obligation to pay damages on the part of the seller and with full liability to pay damages on the part of the buyer to the seller, all at the seller’s discretion.

12. Anti-Corruption
12.1 Buyer shall at all times comply with all obligations and restrictions resulting from all applicable anti-corruption regulations of the United States of America, the United Kingdom, the Netherlands and of any other country that is or may become relevant to the performance of the concluded agreement (“Anti-Corruption Laws”).
12.2 Any offer to and any acceptance by employees or members of the customer’s management of money, gifts, presents, travel, entertainment or other consideration related to the contract or the vendor that is intended to, or may be perceived as, inducement to act in a particular manner is strictly prohibited.
12.3 The customer shall not directly or indirectly offer, promise or give anything to any political party, campaign, government agency, official or to (employees of) public institutions, state enterprises, organizations, international institutions for the purpose of obtaining or retaining business or any other improper advantage in connection with the contract or the seller.
12.4 In connection with the contract or the seller, the buyer shall not offer, promise, give or accept anything from a business relationship unless there is fair ground for doing so and it is reasonable in the ordinary course of business and otherwise complies with local laws.
12.5 Buyer shall immediately notify Seller if it learns of any situation in the performance of the contract that may violate Anti-Corruption Laws.
12.6 If the buyer does not, does not timely or does not properly comply with the obligations arising for him from this article, the seller shall have the right to suspend or terminate the agreement with immediate effect without notice of default, without any obligation to pay damages on the part of the seller and with full liability for damages on the part of the buyer to the seller, all at the seller’s discretion.
13. Dissolution and suspension
13.1 In case the buyer does not, not timely or not adequately comply with the obligations which arise for him from the concluded contract, or if there is a well-founded fear for this, as well as in case of application for a moratorium, bankruptcy or liquidation of business of the buyer and in case of his death or dissolution or termination of the buyer, if this is a company, or when there is a change in the form of ownership or in the management of the company or in the contribution of the company to the costs of the buyer. dissolution or termination of the buyer, if the buyer is a company, or when there is a change in the form of ownership or in the management of the company or in the contribution of the company’s activities, the seller is entitled, without notice of default or legal intervention being required, to suspend the contract for a reasonable period or to dissolve the contract without any obligation to pay damages.
13.2 The seller’s claim in respect of the part of the contract already performed, as well as the damage arising from the suspension or dissolution, including loss of profit, shall be immediately due and payable.

14. Intellectual property rights
14.1. Seller reserves all intellectual property rights Seller has in connection with goods supplied by Seller.
14.2 In those cases in which it appears from the catalog used by the seller, or from the agreement concluded by the parties, that a variety enjoys protection under plant breeders’ rights – which is indicated by the indication (R)/PBR after the name of the variety in question – the buyer is bound by all obligations connected with that right. Violation of this provision shall result in the buyer being liable for all resulting damage to the seller and third parties.

15. Conflict with legal provisions
Should any provision of these General Terms and Conditions of Sale and Delivery be inapplicable or contrary to public policy or the law, only the provision in question shall be deemed unwritten but otherwise the terms and conditions shall remain in full force and effect.
Seller reserves the right to change the challenged to a legally valid one.

16. Competent court / applicable law
16.1 All disputes, including those considered as such by only one of the parties, shall be subject to the judgment of the court having jurisdiction within the Seller’s area of domicile, without prejudice to the Seller’s power to submit the dispute, if desired, to another competent court.
16.2 The provisions of Article 14.1 are without prejudice to the seller’s rights to obtain an award by arbitration by the International Chamber of Commerce in accordance with the Arbitration Rules of the International Chamber of Commerce, by a single arbitrator. The place of arbitration is Amsterdam, Netherlands. The arbitration proceedings will be conducted in the English language.
16.3 All offers made and quotations issued by the seller and all agreements concluded between the buyer and the seller shall be governed exclusively by Dutch law.

Art.8.8 added Feb 2017
Art. 11 and 12 added Jan. 2018