General Stipulations

GENERAL TERMS AND CONDITIONS OF SALE FOR BOOMKWEKERIJ GEBR. VAN DEN BERK B.V.

General Stipulations
Art. 1. Definitions.
1. Seller:
Boomkwekerij Gebr. van den Berk B.V.
2. Buyer:
Any natural person or legal entity that purchases goods or services from the seller.

Art. 2. Applicability.
1. These general terms and conditions are applicable to all offers and/or all agreements of sale or purchase made by the seller or
entered into with third parties. The general terms and conditions are applicable insofar as the agreements are entered into with
subjects of EU member states. Variance from these general terms and conditions is only binding if and insofar as the parties have
explicitly agreed this in writing.
2. General and/or special conditions of the buyer are not of effect on the seller, unless if the seller has agreed to the applicability of
such terms and conditions explicitly and in writing.

Entering into an agreement
Art. 3. Tender.
1. The seller submits a written, dated tender, free of engagement, unless stated otherwise in the tender.
2. All tenders and price estimates are conditional on interim sales and growth.

Art. 4. Agreement.
The sales and purchase agreement (with the exception of cash sales or purchases) and additions and/or modifications concerning
them, only become binding following a written order confirmation by the seller. The content of the order confirmation is qualifying for the
content of the agreement.

Art. 5. Prices.
1. All prices of sales are expressed in Euros or Pound Sterling and do not include VAT and are ex the seller’s company premises.
2. Unless expressly otherwise agreed, the costs for packaging and shipping and suchlike including all other levies imposed on or
charged for the products of the seller and transport are for the account of the buyer.

Art. 6. Payment.
1. Unless expressly otherwise agreed, the amount on the invoice must be paid within 30 days of the date on the invoice, without
deductions of discounts or other settlements.
2. All payments must be made without any further costs to a bank or giro account indicated by the seller.
3. New discountable bills will only be accepted by the seller if expressly agreed upon in writing. Costs and dues related to the
discounting are for the account of the buyer.
4. Payment will only be considered received when the seller may access the amount unhindered; the acceptance of bills and cheques
is only valid as a method of payment and they will not be considered as actual payment.
5. Liberating payment may not be made to persons employed by the seller who do not have an explicit mandate.
6. If at any moment the seller may have reason to doubt the creditworthiness of the buyer, the seller has the right before complying
(further), to demand an advance on the purchase amount from the buyer, or that the buyer provides valid security for the full
amount that the seller still has to claim from the buyer.
7. The seller retains the right, in spite of other allocation for payment by the buyer, to first pay off the buyer’s older debts. If costs and
interests have already accumulated then the seller is entitled to first pay the costs, then the interest and only then settle the main
claim.

Art. 7. Late or Outstanding Payments.
1. Payment cannot be suspended on the grounds of claims of inferior shipment or on the grounds that the shipment is not
yet complete or based on any other professed claim by the buyer. Neither is the buyer entitled to settlement or return for
reimbursement of the purchase price nor discount of the purchase price unless the seller has given explicit written permission.
2. If the buyer remains in default of the required advance payment in accordance with the previous article under paragraph 5 and also
fails to supply the required security, then the seller is entitled to dissolve the agreement, either in its entirety or partially.
3. From the moment that there is a question of non-compliance with the obligation to pay by the buyer, the buyer becomes liable to
pay interest on the amount owing at a rate of 1% per month.
4. All costs, both judicial and extra judicial, with a minimum of € 250.00, related to late or outstanding payment of whatever the
buyer owes, is for the account of the buyer. Extra judicial costs cover all costs for summonses and serving notice as well as the
advances and fee of whoever has been assigned by the seller to collect the monies owing. If the bankruptcy of the buyer must be
filed for, then he is not only liable for the principle sum and the extra judicial costs and contractual interest, but also the costs for the
bankruptcy petition.

Art. 8. Delivery.
1. Free deliveries are offered on the basis of full loads. If the buyer only requests delivery of part of his order, necessitating a partial
load, then the seller is entitled to charge the buyer the extra costs this creates. Free deliveries that are not a full load are delivered
whenever combination possibilities allow it.
2. For deliveries arranged by the seller, the buyer bears full responsibility for competent unloading unless explicitly agreed otherwise.
3. For these deliveries the maximum time for unloading a full load, unless explicitly agreed otherwise, is three hours. The unloading
time for partial loads is calculated as a proportion of the number of load-metres. If the unloading time is exceeded or extra
unloading addresses are added then the seller is entitled to charge the extra unloading/waiting hours based on cost price.
4. Packing material is charged to the buyer in accordance with the prices as published by the Foundation for Ancillary Materials. The
customer may return the packing material during the same season, upon which the Foundation for Ancillary Materials will reimburse
a standard compensation.
5. Ancillary materials like straps, chains, holsters etc. are charged by the seller and only credited if the buyer, at his own expense and
in good order, returns them within a month.
6. Transporting the goods, also when transported free of charge, is at the buyer’s risk.
7. If the delivery period is brought forward or delayed by the buyer, then the buyer is responsible for damage to the plants caused by
premature or postponed delivery.

Art. 9. Delivery Time.
1. The delivery dates submitted by the buyer are without obligation, unless otherwise agreed, explicitly and in writing.
2. The delivery times are subject to many circumstances beyond the control of the seller therefore the seller is not responsible for any
delays with the arrival of the truck.
3. Delivery upon request gives the seller the right, if an earlier request for delivery has not been complied with, to deliver autumn
deliveries at any time after 15 November of the same year, and in the spring to deliver at any time after 1 April of the same year.

Art. 10. Cancelling an Order.
1. If an order issued by the buyer is fully or partially cancelled, then the buyer must reimburse the seller for any damages caused
hereby. The damage is calculated as 50% of the net amount invoiced for the cancelled order. The right to prove higher damages is
reserved.
2. When delivery is refused, then the buyer is liable for all resulting costs and damages, unless refusal of delivery is the result of
an erroneous delivery or transport damage, hindering or making impossible the use of the entire delivery or a great part thereof.
Calculating damages is done on the basis of the contents of paragraph 1.
3. If delivery is refused without satisfying the abovementioned conditions, then the seller is free to sell the plants for the account of the
defaulting buyer without prior notification and at a price that he thinks acceptable.

Liabilities
Art. 11. Force Majeure.
1. Exceeding the delivery time because of force majeure and other unforeseen circumstances that the seller cannot be held
responsible for, making it exceedingly difficult or impossible for the seller to deliver – this includes growth damage or decay caused
by unforeseen and/or weather damage, official prohibition on delivery and/or other orders, interruption of operations, strikes etc.
Also if the circumstances occur at the suppliers of the seller – the seller is not liable in spite of binding delivery agreements. Such
events give the seller the right to suspend the delivery for the duration of the obstruction plus a suitable start-up time, or to dissolve,
either partially or fully the not yet fulfilled part of the agreement.
2. Insofar as the obstruction lasts longer than four weeks and the seller cannot be held responsible for these obstructions, the buyer
may only dissolve the agreement, after he has proposed a reasonable subsequent delivery period in writing to the seller, to which
the seller has failed to comply.

Art. 12. Damage.
1. All responsibility on the part of the seller and his personnel for all damage, whatever sort of damage, directly or indirectly, including
loss of profits, damage to movable property or real estate or to persons and prosecution damage are expressly ruled out except in
the case of intent or negligence bordering on intent.
2. The seller accepts no responsibility for any damage resulting from the use of products from his suppliers; the same applies to
transport.
In any event the liability of the seller will be limited to at the most the amount stated on the invoice with regards to the individual
sales agreement concerned with a maximum of € 40,000.00.

Art. 13. The Buyers Obligation to Provide Information.
1. The buyer is obliged to inform his customers, where necessary, of the correct treatment of the products supplied and in the
applicable cases to advise them in particular of the dangers related to the products, like the degree of toxicity of the plants,
intolerance upon ingestion of plants and/or parts of plants.
2. the buyer indemnifies the seller from every form of responsibility to third parties, in the case of damage being caused as a result of
the buyer not fulfilling the abovementioned obligations.
3. The seller’s guarantee is limited to the supply of products in accordance with the description in the order confirmation.
4. The seller retains the right to supply comparable and/or equivalent species, or thicker or thinner or larger or smaller species, and to
charge accordingly, for those species that cannot be supplied. Such a delivery is not considered in default. Unless explicitly agreed
otherwise, if certain plants cannot be supplied then the seller may resort to supplying B quality plants.

Art. 14. Right of Complaint.
1. Upon receipt, supplied products must immediately be checked for transport damage, incorrect delivery and/or incorrect quantities.
These sorts of complaints must be noted on the delivery note; later complaints for these sorts of damages will not be accepted.
2. Other complaints must be submitted promptly and in writing, with a detailed description of the reason, to the seller, and under the
condition that if it concerns visible flaws, that it be within eight days following receipt or acquisition of the product.
3. Complaints that are too late and/or not correctly submitted will not be dealt with. The date of the postmark or fax is qualifying.
4. If the right of complaint is exercised timely and the complaint is justified, then the seller will, at his own choice, either supply
substitute products without charge or send a credit note for the amount of the invoice. If the complaint refers to the genuineness of
the species of plants delivered, then the guarantee of the seller is limited to the amount of the invoice.
5. The seller is not liable for the plants delivered by him not successfully taking root or growing. Unless explicitly agreed otherwise
and in that case under the conditions of the growth guarantee supplied by the seller. The seller must be allowed a suitable period
to be able to supply a replacement delivery.
6. The right of complaint expires at the very latest one month after a written statement by the seller declaring the complaint
inadmissible, unless the buyer has submitted an objection in writing to this rejection. The seller is obliged in such a case to inform
the buyer explicitly of the consequences of not responding.
7. Having submitted a complaint does not free the buyer of his obligation to pay. Only if the seller agrees in writing may the buyer
reduce the amount of the invoice with the amount of the contested products.
8. The right of complaint may only be exercised by the directly contracting party. The right of complaint is not transferable.
9. All rights of complaint lapse if the buyer does not treat the plants that he has rejected with the necessary care during the period
that they are in his possession.

Art. 15. Condition of Ownership.
1. The ownership of the seller’s goods only transfer to the buyer if the goods in question have been fully paid. The delivered goods
may be reclaimed by the seller at any time until full payment has been received, and the buyer in that case is obliged to return
these goods immediately upon receiving an initial request to do so.
2. The sold goods remain the property for the security of the seller as long as the seller has claims from previous or later similar
agreements.
3. The buyer is not allowed to transfer the goods supplied either in title or actually to third parties or to burden them with limited rights
without the permission of the seller.

Art. 16. Disputes.
All disputes, even those that are only considered as a dispute by one of the parties involved, with regards to an agreement to which
these trading terms and conditions apply, agreements resulting from such an agreement or these trading terms and conditions
themselves, will be settled by arbitration by the Netherlands Arbitration Board for Arboriculture in accordance with the Regulations part
of these conditions.

Art. 17. Applicable Law.
1. All (legal) relationships between the seller and buyer are subject to Netherlands law unless explicitly otherwise agreed.
2. The applicability of the UN Convention on Contracts for the International Sale of Goods (CISG) is excluded.