General Terms and Conditions of IBH BUNG-LINDEN B.V.
filed with the Amsterdam Kamer van Koophandel (Chamber of Commerce) under no. 33281287.
1. These General Terms and Conditions apply to all offers made by IBH to all agreements concluded between IBH and a customer (the ‘Buyer’), and to the performance of those agreements.
2. Any varying provisions must be expressly agreed in writing and will be deemed to supplement these General Terms and Conditions. To the extent that the varying conditions are not compatible with these General Terms and Conditions, the varying provisions will have preference over the General terms.
1. All offers made shall not bind IBH, unless they specify a time limit. If a non-binding offer is accepted by the Buyer, IBH may revoke the offer within two working days of receipt of the acceptance.
2. An agreement will be concluded at the moment of express acceptance of the order by IBH in a manner that is customary in the sector.
3. Offers are once-only and will not apply to repeat orders.
1. The prices are generally determined upon acceptance of the order.
2. The Prices are ex works (EXW) IBH.
3. The Prices do not include value added tax (VAT), import duties, other taxes and charges, costs of quality inspection and/or phytosanitary testing, costs of loading and unloading, packaging, transport, insurance and any other costs.
4. The prices are in euros, unless another currency is stated in the invoice.
4 DELIVERY AND DELIVERY TIME
1. Any delivery times quoted are an indication only and may in no event be regarded as being of the essence, unless otherwise expressly agreed in writing. IBH will not be liable for any loss incurred by the Buyer as a result of delays beyond the delivery time quoted.
2. Should IBH not be able to perform (part of) an order, he will inform the Buyer as soon as possible. If IBH is not able to deliver the ordered quantity, he may deliver a smaller quantity or postpone the performance and/or, by mutual arrangement with the Buyer, deliver other products that are similar or of the same value.
3. Unless otherwise expressly agreed in writing IBH’s warehouse or processing area or any other place indicated by IBH will be regarded as the place of delivery.
4. Delivery will be free only if and to the extent as so agreed and stated by IBH in the order confirmation.
5. IBH reserves the right not to perform orders if the Buyer has not paid for previous deliveries within the agreed term of payment.
6. If the Buyer has not taken delivery of the products at the agreed time and place, the Buyer will be in default and liable for any loss in quality suffered due to storage. The products ordered will be available to the Buyer during storage and will be stored to the Buyer’s account and at the Buyer’s risk.
7. If, however, the Buyer has not taken delivery of the products after a limited storage period (that may be considered reasonable in view of the product type) and if in the opinion of IBH the risk of loss of quality and/or decay of the products so demands in order to limit loss, IBH will be entitled to sell the products in question to a third party.
8. Non-performance by the Buyer does not relieve him of his obligation to pay the full price.
9. IBH will not be liable for any loss incurred as a consequence of non-delivery.
5 FORCE MAJEURE
1. In the event of force majeure IBH may rescind the agreement or temporarily postpone delivery. ‘Force majeure’ includes, but is not limited to, circumstances such as civil commotion, war, strikes, natural disasters, epidemics, terrorism, weather conditions, traffic conditions such as roadblocks, road work or traffic jams, fire, government measures or the such.
1. The products will be packaged in the manner that is customary in the flower and plant wholesale trade. Non-reusable packaging will be charged at cost and reusable packaging and other durable material (cardboard boxes, containers, stacking trolleys, etc.) will also be charged at cost, unless otherwise agreed in writing. When reusable packaging is returned in good shape, IBH will send a credit note regarding the value of the charged cost, of which possible rent charges and return shipment will be deducted. Returning of the reusable packaging is according to the terms and conditions stated by FloraHolland and Container Centralen.
2. The disposal of non reusable packaging is the responsibility of the Buyer, unless the law dictates otherwise. Is this the case, IBH will only take back non reusable packaging to dispose of it when it was sold by IBH or when it is of the same material as packaging sold by IBH and it is no more than the quantity sold by IBH.
3. Transportation materials are all objects that are used for transportation of goods and form a unit with them, such as among others CC containers, stacking carts, Euro containers, Euro pallets and accessories. These transportation materials are borrowed to the Buyer. In the months of January till December of any year a rental fee is charged for CC containers, CC trays, Euro containers und Euro trays, that have not been returned right after the product is delivered. IBH will yearly state the height of these rental fees. These fees are announced on our website and on the bottom of the invoice.
4. Should the Buyer not return the borrowed or rented transportation materials within 60 days after delivery of the product and should this still be the case after a new term of two weeks was granted, IBH will have the right to claim the replacement costs as follows:
a) CC container
b) CC shelves
c) Extensions short
d) Extensions long
e) Poles 180 cm
f) Extensions plastic
g) Auction cont.
h) Euro containers
i) Euro cont. shelves
j) Euro pallets
5. All movements of reusable transportation materials are put down in charts. The statements as drawn up by IBH are accounts closures within a current account and contain the actual stock and its changes. When sending a statement, IBH informs the Buyer that the numbers contained therein are considered to be accepted should the statement not have been soundly refuted within the term mentioned on the statement, or, should no term be mentioned, within two weeks after sending the statement.
6. Packaging that bears marks indicating it to be IBH property is to be used for IBH products only. Every other use will be held against the Buyer by IBH as a violation of property and user rights.
7. The buyer is to treat transportation materials and reusable packaging carefully and to return them undamaged and clean. Damaged packaging and transportation materials will only be taken back against an replace and repair fee. A return can only take place in the same number as delivered by IBH and in a form accepted by IBH. It is allowed to return similar transportation materials.
8. The current prices and rental fees will be announced on our website or in another suitable way. They can be changed with a term of four weeks.
7 COMPLAINTS and RECLAMATIONS
1. Complaints concerning defects in products that are visible at the moment of their delivery must immediately be notified to IBH by fax, e‑mail or telephone. The complaint is also to be noted on the transport documents in question. Other visible defects that are noticeable when the products are duly inspected by the Buyer are to be notified to IBH within 24 hours after delivery in the above mentioned way. A notification by telephone must be confirmed in writing within two days after receipt of the products.
2. Complaints concerning non-visible defects in products delivered must be notified to IBH immediately after discovery. When the complaint was not submitted in writing, it must be confirmed to IBH in writing within 24 hours. In all cases claims become statute barred after one month after delivery of the products.
3. A complaint must in any event contain:
a. a detailed and accurate description of the defect(s) and the numbers concerned and
b. a statement of any other facts from which it can be inferred that the products delivered and the products rejected by the Buyer are one and the same.
4. The Buyer is to enable IBH to investigate, or instigate an investigation of, the validity of the complaints on location and/or to take back the products delivered. The products must be stored in the original packaging.
5. Complaints in respect of a part of the products delivered will not entitle the Buyer to reject the entire delivery.
6. Once the time limits referred to above have elapsed, the Buyer will be deemed to have accepted the products delivered or the invoice rendered. IBH will no longer be obliged to handle any claims submitted by the Buyer.
1. IBH is not liable for any loss incurred by the Buyer, unless and to the extent the Buyer proves, that the loss was caused by intent or gross negligence on the part of IBH.
2. Defects concerning any possible phytosanitary and/or other requirements that are applicable in the country of importation do not entitle the Buyer to any indemnification or rescindment of the agreement, unless and to the extent that the Buyer has informed IBH of these requirements beforehand in writing.
3. IBH is never liable for any consequential loss suffered by the Buyer. Should IBH nevertheless have to indemnify a loss, liability of IBH for any loss incurred by the Buyer will not exceed the invoice value of the products delivered to which the claim applies.
4. Unless otherwise expressly stated, the products delivered are intended exclusively for decorative purposes and are not suitable for internal consumption. IBH notes that the products may have harmful effects on humans and/or animals in the event of incorrect use, consumption, contact and/or hypersensitivity. The Buyer must pass on this warning to its customers and indemnifies IBH against any and all claims from third parties, including end users, in respect of these consequences.
1. Payment must be made, at IBH’s option:
a. net cash on delivery; or
b. by means of deposit or transfer to a bank account stated by IBH within 10 days after the invoice date, unless agreed otherwise.
When payment by cheque is accepted, the bank charges will be for the account of the Buyer.
2. The Buyer may not deduct any amounts from the purchase price to be paid on the grounds of an alleged claim. The Buyer may not suspend the payment of the purchase price on the grounds of a complaint about the products delivered. Unilateral statements are therefore not allowed and the Buyer will immediately be in default.
3. The Buyer will be in default upon the expiry of the agreed term of payment. IBH will then be entitled to rescind the agreement with immediate effect. IBH is not liable regarding any consequence that this rescindment might entail.
4. If the Buyer is in default, IBH will be entitled to charge interest of 0,033% per day (12% per year) or, should the legal rate be higher, the legal rate on the amount outstanding, as from the due date of the invoice until the date of payment in full.
5. If the Buyer is in default, the Buyer shall also account to IBH for any loss suffered owing to a change in the exchange rate.
6. If third parties are instructed to collect overdue payments, the Buyer shall account to IBH for any court and/or out-of-court costs involved, subject to a minimum of 15% of the outstanding sum, and such sums will fall due immediately.
10 RETENTION OF TITLE
1. Title to all products delivered will continue to vest in IBH until all amounts payable by the Buyer to IBH have been paid in full.
2. The Buyer may not pledge the products or use them as security in any other manner until payment has been made. If third parties levy or intend to levy an attachment on those products or otherwise wish to dispose of them, the Buyer must immediately inform IBH accordingly.
3. The Buyer must always fully cooperate, at IBH’s first request, in IBH’s exercising of its retention of title. The Buyer will be liable for all costs incurred by IBH in connection with its retention of title and any related actions, as well as for any direct and indirect loss incurred by IBH arising therefrom.
4. With respect to products destined for export (from the Netherlands), from the time of arrival in the country of destination, the law of the country of destination will apply to the property law consequences related to retention of title. From that moment, if permitted under that applicable law, the following provisions apply in addition to the provisions of points 1 to 3 above:
a) In the event of breach of contract by the Buyer, IBH will have the right to immediately take possession of the products delivered and of the relevant packaging and transport materials, and to dispose of them at its discretion. If so prescribed by law, this will imply termination of the agreement in question.
b) The Buyer will be entitled to sell the products in the ordinary course of its business. It hereby assigns all claims that it may acquire against third parties pursuant to such sales. IBH hereby acknowledges this assignment and reserves the right to pursue any such claims as soon as the Buyer fails to fulfil its payment obligations.
c) The Buyer may process the products in the ordinary course of its business, whether or not the products are mixed with other products not supplied by IBH. IBH will acquire joint title to the new goods, in the proportion in which IBH’s products form part of those new goods.
d) If IBH is required by law to surrender part of the stipulated security on request (if the security exceeds the value of any outstanding claims by a certain percentage), it will do so as soon as the Buyer so requests and if it is also apparent from IBH’s accounting records.
11 APPLICABLE LAW/DISPUTES
1. All agreements to which these General Terms and Conditions apply in full
or in part are governed by Dutch law. The provisions of the Vienna Sales
Convention are expressly excluded.
2. The Buyer may only submit claims in respect of or arising from
agreements, to which these General Terms and Conditions apply, to the
competent Dutch Court in the territory in which IBH has its registered
office. IBH may submit such claims either to the competent court in the
territory in which IBH has its registered office or to the competent court
in the territory in which the Buyer has its registered office.
12 FINAL PROVISION
1. Any cases for which these General Terms and Conditions do not provide will also be governed by Dutch law.
2. If and to the extent that any part or provision of these General Terms and Conditions is found to be contrary to any mandatory rule of national or international law, that part or that provision will be regarded as not having been agreed and these General Terms and Conditions will otherwise continue to bind the parties. The parties will then act as if, should they have known of the invalidity of the provision, they had agreed to a valid provision that corresponds with the intentions of the invalid provision, or to a provision comes closest to those intentions.
This document is a translation. Should a dispute arise, the Dutch version of these General Conditions prevails.