1.1 These general sale, delivery and payment conditions (hereinafter: the “Conditions”), once agreed on, are applicable to all current and future agreements and legal acts, including in any case offers, purchase and sale agreements and deliveries, including for resale, of all products (hereinafter: the “Products”) and services (hereinafter: the “Services”) of Plant Health Cure (hereinafter: the “Seller”) with and/or to the other party (hereinafter: the “Buyer”).
1.2 Derogations from and/or exclusion and/or waiver of the Conditions are only possible pursuant to a duly signed written agreement between the Seller and the Buyer.
2. FORMATION OF THE AGREEMENT
2.1 Quotations of any kind given by the Seller do not bind the Seller but only constitute an invitation to place an order.
2.2 All quotations given by the Seller are revocable and can be amended without prior notification.
2.3 Orders are only binding once they have been accepted in writing by a person authorised to do so on behalf of the Seller (“Confirmation from the Seller”).
2.4 The Seller is permitted at all times and without stating reasons to refuse an order.
3. INFORMATION ON PRODUCTS
3.1 The Seller develops data sheets for its Products (“Technical Data Sheet”) and specifications referring to the Products (the “Specifications”).
3.2 The available information can be seen on the Seller’s website or will be sent on request. The Seller will send Technical Data Sheets with each dispatch of Products. The Buyer is therefore deemed to have been adequately informed about the Products and the instructions for use when placing an order. Except as defined in article 8, any samples provided to the Buyer are only provided for information purposes and do not imply any explicit or implicit conditions or guarantees of any kind at all.
4.1 The prices and currency applicable to the Products of the Seller are stated in the Confirmation from the Seller.
4.2 Unless otherwise agreed, the Seller’s prices include standard packaging excluding VAT and/or all other applicable taxes, rights, levies and/or charges, which are levied in a certain country on the Products and/or the delivery thereof (“Taxes”).
4.3 The amount of the Taxes to be levied in relation to the sale of the Products at the Buyer is payable by the Buyer and is stated on each invoice or individually charged to the Buyer by the Seller.
4.4 If the Seller grants a discount, this discount only pertains to the delivery specifically referred to in the Confirmation from the Seller.
4.5 Unless the Seller indicates in its Confirmation that it concerns fixed prices, the Seller is permitted to increase the price of Products still to be delivered if the cost-determining factors have been subject to increase.
4.6 The Buyer will be informed by the Seller of such a price change as soon as reasonably possible.
5. PAYMENT TERMS
5.1 Unless explicitly stated otherwise in the Confirmation from the Seller or agreed on in writing by the parties, payment must be made within 30 (thirty) days of the date of the invoice sent by the Seller for the Products, by way of transfer to the bank account stated on the invoice, without tax deduction, discount or set-off.
5.2 Complaints concerning an invoice must be made to the Seller within 8 (eight) days of the invoice date. Thereafter, the Buyer will be deemed to have approved the invoice and to have agreed to the content.
5.3 The Seller is permitted, notwithstanding all other rights of the Seller, to charge interest of 1.5% (one and a half per cent) per month on overdue payments from the due date, until all outstanding amounts have been paid in full.
5.4 If disputes arise between the Buyer and the Seller, including on the collection of overdue payments, related costs incurred by the Seller (including lawyer’s fees, expert costs, court fees and other procedural costs) are payable in full by the Buyer.
6. DELIVERY AND ACCEPTANCE
6.1 Unless explicitly stated otherwise in the Confirmation from the Seller all Products are delivered FCA, where the expression ‘FCA’ will have the meaning given to it at the time of the Confirmation from the Seller in the most recent version of the INCOTERMS published by the International Chamber of Commerce (ICC).
6.2 Unless explicitly stated otherwise in the Confirmation from the Seller, the times and/or dates of delivery by the Seller are estimates and not fixed deadlines. The Seller is permitted to deliver the Products in batches and to invoice them separately. In no event is the Seller liable for any form of indirect and/or consequential damage or loss caused by delay in the delivery.
6.3 Any delay in the delivery of Products does not relieve the Buyer of its obligation to take delivery of and pay for the Products. Differences in the quantity of delivered Products with regard to the Confirmation from the Seller do not entitle the Buyer to refuse the Products. The Buyer is required to pay the rate stated in the Confirmation from the Seller for the quantity of delivered Products.
6.4 The risk of the Products passes to the Buyer on delivery. Products whose delivery is suspended whilst awaiting payment by the Buyer, as well as Products which were wrongly refused or not taken delivery of by the Buyer, will be kept and stored by the Seller at the Buyer’s expense and risk.
7.1 If the Buyer wrongly refuses or rejects Products, or cancels or refuses to acknowledge a Confirmation from the Seller then the Seller is entitled, as well as all other damage or loss caused by such an action, to recover the following:
8.1 The Buyer must inspect the Products both on delivery as well as during use, processing, transport, storage and sale of the Products (the “Application”) and ensure that the delivered Products satisfy all contractual requirements.
8.2 Complaints with regard to the Products must be made in writing and be received by the Seller within 7 (seven) days of the delivery date if it concerns a defect, failure or flaw that would have been seen on reasonable inspection on delivery and no later than 7 (seven) days after the date on which all other claims became apparent or should have been apparent, be it in any case no more than 3 (three) months after the delivery date agreed on for the Products in question. Application or processing of the Products by the Buyer applies as unconditional acceptance of the Products and as a waiver of all claims in respect of these Products.
8.3 The establishment whether the delivered Products comply with the specifications agreed on for the Products as stated in the Confirmation from the Seller, or, should no specifications have been agreed on, with the specifications most recently used by the Seller at the time of delivery of the Products (the “Specifications”), only takes place based on an analysis of the samples and/or administrative data as kept by the Seller and from the batches or product series in which the Products have been produced by the Seller. Products of which the Seller permits or indicates in writing that they may be or must be returned will be returned at the Buyer’s risk to the Seller and to the destination indicated by the Seller.
8.4 Defects to a part of the Products referred to in the Confirmation from the Seller do not entitle the Buyer to refuse all Products. Any complaints do not affect the Buyer’s payment obligation as defined in article 5. After receipt of notification of a defect, the Seller is authorised to suspend all further deliveries, until it has been established with regard to the complaints that these are unfounded and/or until they have been disproved, or until the defect has been remedied in the expert opinion of the Seller.
9. EXTENDED RETENTION OF TITLE
9.1 The Seller reserves the title to the Products delivered and Products to be delivered until all current and future claims of the Seller against the Buyer have been paid. All items delivered to the Buyer therefore are deemed to have been delivered based on unpaid invoices. As long as all ordered and/or delivered Products have not been paid for in full, the Seller is irrevocably authorised and entitled without judicial intervention to take back the Products present at and delivered to the Buyer by the Seller.
9.2 In addition, the Buyer is not entitled to dispose of the delivered Products, which includes by selling them, other than in the normal exercise of its business or profession.
10.1 The Seller guarantees exclusively that on the date of delivery the Products will comply with the Specifications stated on the Technical Data Sheets. If and insofar as there is a case of Products which do not comply with the guarantee, which is established and reported by the Buyer in accordance with the provisions of article 8 of these Conditions, then the Seller is permitted at its own discretion to either replace the Products free of charge, or to award a credit balance in the amount of the original invoice price with regard to these Products. Therefore, the Seller’s obligation is limited to exclusively replacing the Products or awarding a credit balance for the Products.
10.2 The above guarantee is exclusive and replaces all other guarantees (including explicit, implicit, statutory, contractual or other guarantees).
11. LIMITATION OF LIABILITY
11.1 The Seller’s liability is limited to what is determined in this article.
11.2 The Seller is not liable for any consequential damage or loss suffered by the Buyer or third parties of any kind or scope, related to or ensuing from compliance with the agreement or being in default thereof, unless in the case of intent or gross negligence.
11.3 The Seller is not liable for any damage or loss suffered by the Buyer or third parties of any kind and scope, related to or caused by incorrect storage, improper use or application of the items delivered. With respect to storage or the use of advice, information and application possibilities provided by the Seller there is no result obligation or any liability (of interpretation and/or application thereof) of the Seller.
11.4 Likewise, the Seller is not liable if the Buyer or a third party has not complied with government regulations for use, storage or other treatment of Products delivered by the Seller to the Buyer.
11.5 Any liability of the Seller for damage resulting from the presence of residual contamination (of whatever nature) in Products of the Seller that are (partly) composed of raw materials purchased from third parties are expressly excluded.
11.6 In the event of damage or loss which according to this article can be blamed on the Seller, it is not liable under any circumstances vis-à-vis the Buyer or third parties for more than the invoice amount of the delivered Products or anything paid out by the Seller’s liability insurance in that case.
12. PRODUCTS OF THIRD PARTIES
12.1 In the event that the Seller delivers Products to the Buyer purchased from third parties, the Seller will never be required vis-à-vis the Buyer to do anything more than what applies vis-à-vis the Seller in the relevant delivery and sales conditions of those third parties. Those conditions will be sent to the Buyer on request.
13. FORCE MAJEURE
13.1 Neither party is liable in any way for damage or loss and/or expenses ensuing from or in relation to failure to fulfil an obligation vis-à-vis the other party caused by circumstances beyond the reasonable control of that party, including but not limited to natural disasters, legislation and regulations, government action or other administrative measures, strikes, problems in acquiring the necessary workers or raw materials, lack of logistic means, malfunctions in factory machines or in essential machines, emergency repairs or maintenance, breakdowns or shortages in public facilities (“Force Majeure”).
13.2 If a case of Force Majeure occurs then the party on whose side the Force Majeure occurs must notify the other party immediately in writing, stating the cause of the Force Majeure and the way in which it will affect fulfilment. In the event of delay, the delivery obligation is suspended for a period equivalent to the time lost due to the Force Majeure.
13.3 If a case of Force Majeure lasts longer or is expected to last longer than 2 (two) months after the agreed delivery date however, then either party is entitled to cancel the part in question of the Confirmation from the Seller without this leading to any liability vis-à-vis the other party.
14.1 Unless it is agreed that Specifications are fixed for a certain period or with regard to a certain quantity of Products, the Seller reserves the right to change or adjust the Specifications and/or the construction and/or manufacture of the Products, and to replace materials used in the production and/or manufacture of the Products from time to time after written notification. The Buyer acknowledges that the details in catalogues, specification sheets and other descriptive publications of the Seller distributed or published by the Seller via its own websites may accordingly from time to time be derogated from without prior notification.
15. SUSPENSION AND TERMINATION
15.1 If: (a) the Buyer fails in the fulfilment of its obligations vis-à-vis the Seller; or
15.2 (b) if on the side of the Seller there is a case of reasonable doubt with regard to fulfilment by the Buyer of its obligations vis-à-vis the Seller and the Buyer does not furnish adequate security for the Seller for fulfilment by the Buyer before the date of the planned delivery, and in any case within 30 (thirty) days after the request is made by the Seller for such security; or if the Buyer has become insolvent or applies for bankruptcy or has applied for bankruptcy or the entity of the Buyer is dissolved and/or liquidated, or if the Buyer enters into a composition for its creditors or assigns rights, then the Seller, without prejudice to all other rights of the Seller, is permitted to cancel the agreement immediately without judicial intervention by way of written notification and to claim the Products delivered by it based on retention of title. In that case, all outstanding claims of the Seller against the Buyer will become due and payable immediately.
16. WAIVER OF RIGHTS
16.1 If the Seller at any time fails to enforce a provision of these Conditions this will not imply a waiver of the right of the Seller to act and/or to enforce that provision, and the rights of the Seller will not be affected by delay in enforcing the said provision or failing to do so.
16.2 A waiver by the Seller with regard to the non-fulfilment of the obligations of the Buyer does not constitute a waiver in respect of all other, previous or later cases of non-fulfilment.
17. MAINTENANCE AND TRANSFORMATION
17.1 If any provision of these Conditions is declared invalid or unenforceable then this does not affect the validity or enforceability of the other provisions applicable between the parties in any way and it will be separated from them.
17.2 The provisions that have been declared invalid or unenforceable will, insofar as permitted by law, be transformed into provisions that comply with the legal and economic intention (of the Seller) of the original provisions.
18. APPLICABLE LAW, SETTLEMENT OF DISPUTES AND COMPETENCE
18.1 Dutch law applies to the legal relationships between the Buyer and Seller, which also includes application of the Vienna Sales Convention for international legal relationships. In any disputes between parties, notwithstanding other mandatory rules, the Dutch court, namely the competent court of the District Court of Oost-Brabant, will be exclusively authorised to hear disputes.
18.2 The Buyer will not take the Seller to court until the Seller has first been notified in writing of an alleged claim against the Seller within 30 (thirty) days after the event which was complained about was first known to the Buyer, and provided the Buyer actually brings institutes a claim within 12 (twelve) months of the said notification. The Buyer will lose any rights of action in the event of exceeding the above-mentioned and other terms referred to in these conditions.