General Therms
| Article 1 a. General Terms and Conditions: these general terms and conditions. b. Parties: Vitroflora and the Customer. c. Vitroflora: Vitroflora Grupa Producentów sp z o.o. Article 2 Applicability 1. These General Terms and Conditions apply to any and all offers, sales or deliveries by Vitroflora to a Customer or any other agreements among Vitroflora and a Customer. 2. Any provisions contrary to the General Terms and Conditions must be agreed upon in writing and insofar they do not replace the relevant provisions of the General Terms and Conditions, they are deemed to be supplementary to the General Terms and Conditions. 3. A copy of the General Terms and Conditions shall be available on the website of Vitroflora. Article 3 Offers and prices 1. All offers of Vitroflora are non-binding unless otherwise agreed in writing. An offer shall be valid for a maximum of 30 days. 2. An agreement is deemed to be concluded by the written confirmation of the offer by the Customer, unless Vitroflora objects the confirmation in writing within five days after Vitroflora has received the confirmation from the Customer. 3. If an agreement is concluded by an agent, representative or other intermediary on behalf of Vitroflora, the agreement shall only deemed to be concluded once it has been accepted in writing by Vitroflora. 4. Prices are excluding VAT and additional expenses, such as transport charges, packaging costs, cost of quality control and/or phytosanitary inspection, import duties, government and other official levies, and fees under breeders’ rights and any other fees, unless explicitly otherwise agreed in writing. 5. If Vitroflora’s expenses for a sale or delivery increase significantly since the price for this sale or delivery was set, Vitroflora is entitled to adjust the price to a reasonable level. 6. Unless otherwise indicated, all prices are in euro (€). 7. If the Customer cancels the agreement, the Customer shall immediately owe to Vitroflora, without prior notice being required, a cancellation charge of 25% of the gross sale value of the products to be delivered. In the event the relevant products prove to be unsaleable, or only saleable at a lower price, as a result of said cancellation, the Customer shall be liable for any price difference and other damages incurred by Vitroflora. The Parties are obliged to limit any damages resulting from a cancellation as much as possible. Article 4 Conditions of sale 1. Orders for plants and/or cultivation material that is not yet fully grown at the time of purchase shall be accepted subject to the normal cultivation average of good plant material with a good appearance. 2. Partial or complete failure of the cultivation or harvest of starting material or partial spoilage during storage for any reason shall release Vitroflora from the obligation to deliver and his other obligations, unless attributable to gross negligence on the part of Vitroflora. 3. Vitroflora is also entitled to assure a replacement delivery, which shall occur on the same terms as originally agreed. 4. If the delivery of a type that has been ordered is not possible for any reason, Vitroflora shall be entitled to deliver a type that is equivalent as much as possible or to cancel the order if the type ordered cannot be delivered, or the Customer does not accept a different type; Vitroflora shall endeavour to deliver a different type. Article 5 Delivery and transport 1. Delivery is ex works unless explicitly otherwise agreed. On delivery, the risk of the relevant products is transferred to the Customer with everything that is connected thereto. 2. After consultation with the Customer, Vitroflora shall determine the delivery date or the delivery period. If a delivery date or a delivery period is agreed on, Vitroflora shall endeavour to maintain that date or period for delivery. If Vitroflora cannot deliver on the agreed delivery date or within the agreed delivery period, he shall inform the Customer as quickly as possible. After consultation with the Customer, Vitroflora shall determine the new delivery date or the new delivery period. 3. If the Customer receives the relevant products before the agreed delivery date or delivery period as referred to in paragraph 2, the resulting risk is entirely for the Customer. 4. If the Customer receives or wishes to receive the relevant products after the agreed delivery date or delivery period, the risk of any loss of quality resulting from longer storage shall be entirely for the Customer. If, after a certain storage period that may be considered reasonable in view of the type of product, the Customer has not received the product and the risk of loss of quality and/or spoilage of the products leaves no other option, the order shall be deemed to have been cancelled by the Customer, in which case the Customer is obliged to pay the damage incurred by Vitroflora as a result. |
| Article 6 Packaging/carts/pallets 1. Single-use packaging shall be charged at cost price and returns shall not be accepted. 2. All packaging except single-use packaging remains the property of Vitroflora. 3. Vitroflora is entitled to charge the Customer an agreed user fee for re-usable packaging and other durable material, to be specified separately on the invoice. 4. The Customer is obliged to return the packaging to Vitroflora at his own expense and in good condition, within 30 days from delivery or immediately after planting. If it has been agreed that Vitroflora is to collect the packaging, the Customer must ensure that the packaging remains in good condition until the date indicated by Vitroflora and store it so that Vitroflora may collect it in a normal manner. 5. The Customer may not keep the packaging in use or allow it to be used by third parties. 6. Carts, rolling containers, re-usable pallets must be returned immediately unless agreed otherwise. It is not permitted for the Customer to use them for his own purposes or give them to third parties. 7. In the event of damage to re-usable packaging, carts, rolling containers, pallets, etc., the Customer is obliged to pay the cost of repairs or replacement and any additional rental charges resulting from late returns. Article 7 Payment 1. Vitroflora is entitled to request an advance payment of 50% of the invoice amount from the Customer. 2. Payment must occur within thirty days after the invoice date. 3. The Customer is not entitled to set off any counterclaim the Customer may have against Vitroflora with the purchase price he is to pay. 4. The Customer is not entitled to suspend the fulfilment of its payment obligation in the event of a complaint he has submitted to Vitroflora regarding the products delivered, unless Vitroflora explicitly agrees with such suspension under the conditions to be set by Vitroflora. 5. All payments shall be made at the offices of Vitroflora or by deposit on or wire transfer into a bank account to be indicated by Vitroflora. 6. Payments must be made in euro (€) unless otherwise indicated on the relevant invoice. In case the invoice indicates that a payment may be made in another currency, Vitroflora is entitled to charge the Customer for any exchange rate fluctuations. 7. If the Customer does not fulfil his payment obligation in time, he shall be deemed to be legally in default. Vitroflora shall then be entitled to charge interest at 1% monthly from the date that the Customer is in default of fulfilling the payment obligation as mentioned in paragraph 2, with a partial month being counted as a whole month. In addition, in case the second sentence of paragraph 6 applies, Vitroflora is also entitled to charge the Customer for any (further) exchange rate fluctuations incurred by the Customer’s default. 8. If the Customer is in default or otherwise fails in fulfilling one of his obligations, all reasonable charges in obtaining satisfaction, both legal and extralegal, shall be at the Customer’s expense. 9. Vitroflora reserves the right not, or no longer, to carry out, orders or agreements if previous deliveries have not been paid for by the Customer or the Customer has not fulfilled, or is at risk of not fulfilling, his obligations to Vitroflora. Vitroflora is not responsible for any damage to the Customer as a result of not carrying out orders. Article 8 Force majeure 1. Force majeure refers to any circumstance outside the direct sphere of influence of Vitroflora in which fulfilment of the agreement can no longer reasonably be expected. This may include strikes, fire, extreme weather conditions or government measures and disease and plagues, or faults in the material supplied to Vitroflora. 2. If Vitroflora cannot carry out the delivery because of force majeure, Vitroflora must inform the Customer of the circumstances in writing as soon as possible. 3. In the event of force majeure, the Parties shall agree a change to the agreement or a (partial) dissolution of the agreement. 4. If the Parties cannot agree on a change or dissolution within 10 days after the written notice of the circumstances in question, either of the Parties may then turn to a judge. Article 9 Unforeseen circumstances for the Customer 1. In the event of unforeseen circumstances that are so serious that Vitroflora may not reasonably expect that the purchase agreement concluded shall remain in effect unchanged, the Parties shall agree a change to the purchase agreement or complete or partial dissolution of the purchase agreement. 2. If the Parties cannot agree on a change or (partial) dissolution within 10 days after the written notice of the unforeseen circumstances, either of the Parties may then turn to a judge. |
| Article 10 Guarantees and complaints 1. Vitroflora does not guarantee the genuineness of the products that are generally known to branch back. 2. Vitroflora does not guarantee the growth and blossoming of the products delivered. 3. The Customer shall at all times be provided with all requested cultivation information to the best of Vitroflora’s knowledge and abilities, by or on behalf of Vitroflora, but without any liability of Vitroflora arising therefrom. 4. Complaints regarding visible defects, including those regarding the quantity, size or weight of the products delivered, must be indicated to Vitroflora within two days after delivery and Vitroflora must be informed in writing within eight days. 5. Complaints regarding non-visible defects must be indicated to Vitroflora immediately after detection (within two days at the latest) and Vitroflora must be informed in writing within eight days. 6. Complaints must also be indicated to Vitroflora at such time that Vitroflora can check the plant material. 7. A complaint must at least include (i) an extensive and precise description of the defect, (ii) the storage location of the cultivation material to which the complaint relates, and (iii) a listing of the facts on the basis of which it can be determined that the products delivered by Vitroflora and those rejected by the Customer are the same. 8. If the products delivered are rejected by the Customer under the terms of this article and the Customer and Vitroflora do not immediately agree on an amicable settlement, the Customer must then appeal to an independent, officially accredited expert who shall draw up an expertise report. The costs of the expertise report shall be for Vitroflora if the rejection is justified and for the Customer if the rejection is not justified. The costs of the expertise report must be prepaid by the Customer in any event. 9. Complaints regarding a portion of the products delivered cannot give rise to a rejection by the Customer of the entire delivery. 10. The Customer is obliged to check the quantity of the shipment delivered, or have it checked, on receipt and to report a deviation in the quantity to Vitroflora. 11. Issuing a complaint does not suspend the Customer’s obligation to pay, regardless of any justification of a complaint. Article 11 Liability 1. All liability regarding non-timely delivery is hereby excluded, unless the ultimate agreed delivery date or the final date of the delivery period is exceeded by more than seven days. 2. If the delivery date or the final date of the delivery period is exceeded by more than seven days, Vitroflora must be given written notice, whereby the Customer shall set a reasonable period for Vitroflora to fulfil his obligations nonetheless. 3. Vitroflora is not liable for damage caused by force majeure as indicated in article 8 paragraph 1. 4. Compensation by Vitroflora of any damage incurred by the Customer in the event of a complaint submitted under article 10 shall not be higher than the invoice value of the products delivered referred to by the complaint that proves to be justified, provided there is culpability or conscious negligence on the part of Vitroflora. 5. In the event of a partial failure of the harvest as a result of the products delivered for the Customer, the compensation owed by Vitroflora for the damage incurred by the Customer shall not exceed a percentage of the purchase price of the products delivered, which is at most equal to that portion of the harvest that has failed for the Customer. If, when damage is reported, Vitroflora and the Customer jointly or a third party determines the percentage of deviating, diseased or weak plants, this percentage shall determine Vitroflora’s maximum liability. The Customer is obliged to ensure that the damage as a result of deviating, diseased or weak plants is limited as much as possible. 6. Damage compensation may not be deducted by the Customer from any outstanding account payable to Vitroflora and does not entitle the Customer not to pay the invoice amount, or not to do so by the invoice payment date. Article 12 Transfer of ownership, retention of ownership and surety 1. Notwithstanding the provisions of paragraph 2, ownership of the products is transferred to the Customer at the time of delivery as referred to in article 5. 2. Vitroflora shall retain ownership of the products he has delivered and shall retain or acquire ownership of the products arising from them until the agreed price has been paid in full by the Customer and the Customer has completely fulfilled any and all of his other obligations to Vitroflora. 3. If there is any doubt in the mind of Vitroflora regarding the ability of the Customer to pay, Vitroflora shall be entitled to defer performances until Vitroflora has stood surety for payment or to terminate the agreement by cancellation, if the Customer has not provided surety for payment within fourteen days after being ordered to do so, notwithstanding the terms of article 4 paragraph 1. In both cases, the Customer shall be liable for the expenses incurred by Vitroflora. |
| Article 13 Contractual protection or protection under breeders’ rights of original species 1. Starting material and plant material of species protected by a breeders’ right applied for or granted in the Netherlands or any other country or by a contractual transfer provision may not be (i) used to produce or further reproduce the species, (ii) treated for the purpose of reproduction, (iii) brought into the realm of commerce, (iv) traded further, (v) exported, (vi) imported, or (vii) kept in stock for one of these purposes. 2. The starting material delivered may be used by the Customer only to cultivate end products at the Customer’s business and may be used by the Customer only under the relevant species name and brand name if applicable. 3. Vitroflora is entitled to access to the business of the Customer or lots under the Customer’s control where the starting or plant material delivered by Vitroflora is located to view and/or assess said material. Vitroflora shall inform the Customer of his arrival in a timely manner. 4. The Customer is obliged to provide immediate access to his business and the crops to inspection authorities carrying out inspections on behalf of the owner of a protected species delivered to him. The Customer must also provide immediate access to his records (e.g. invoices) that are relevant to such inspection. 5. If the Customer finds a mutant in the protected species, he must immediately inform the holder of the breeders’ right by registered letter. 6. At the written request of the holder of the breeders’ right, the Customer shall provide the holder of the breeders’ right, within two months of receiving the request, with test material of the mutant, free of charge. 7. The Customer is aware that the finder of a mutant, being a significant derived species, in the protected species, requires the permission of the holder(s) of the breeders’ right regarding the ‘parent species’ to exploit the mutant. 8. In particular, the Customer is aware that the finder of a mutant requires the permission of the holder of the breeders’ right regarding the ‘parent species’ to carry out the actions mentioned in paragraph 1 regarding all material of the species, including harvested material (hence also flowers, plants and/or plant parts). 9. The Customer is obliged to provide all co-operation desired by Vitroflora, including co-operating in collecting evidence, in the event that Vitroflora becomes involved in proceedings regarding breeders’ rights or other industrial property rights. Article 14 Dispute settlement 1. These General Terms and Conditions and any dispute or claim arising out of or in connection with it, its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with Polish law. 2. All disputes (even those deemed as such by only one party) regarding or arising from the agreements concluded between Vitroflora and a Customer established abroad to which these General Terms and Conditions apply may exclusively be settled by the Polish judge who is competent in the area in which Vitroflora is established. Article 15 Applicability of the appendix 1. The Parties may declare the ‘regulations on supplement percentages to be charged in the event of divergent germination percentages’ appended to these General Terms and Conditions to be applicable by agreement. The appendix shall then be part of the agreement to which these General Terms and Conditions also apply. Article 16 Price changes 1. Vitroflora reserves the right to change the final prices, in case of changes in the price components (e.g. costs of materials, labels, packaging, taxes, import duties, exchange rate differences etc.) in relation to the price of these components at the date of confirmation of the order. |