General Terms and Conditions of Sale and Delivery
1.1. These are the general terms and conditions of trade of the NV (PLC) DEROOSE PLANTS, with registered office at 9940 EVERGEM, Droogte 139, KBO 0441.725.528.
1.2. These terms and conditions are applicable to all orders, sales, services and deliveries from and by DEROOSE PLANTS NV (both electronic and non-electronic trade) and always take priority over the terms and conditions of the buyer, except in case of an express written derogation agreement between DEROOSE PLANTS NV and the buyer.
1.3. By placing an order, the buyer is considered to have read these terms and conditions and to accept them.
1.4. Representatives or agents of NV DEROOSE PLANTS are not authorized to enter into contracts or receive payments on behalf of or on account for NV DEROOSE PLANTS.
1.5. In case of product sales, the material delivered can only be used by the buyer for cultivation of an end product at the buyer’s own premises. This material may subsequently be sold by the buyer, exclusively under the applicable variety name and brand name, if any, of the material supplied.
2. Quotes, prices and orders
2.1. Quotes from NV DEROOSE PLANTS are completely free of obligation and do not imply any commitment by NV DEROOSE PLANTS to actually enter into a contract.
2.2. Stated prices are always in EURO, excluding government, customs and/or statutory levies and VAT.
2.3. Stated prices may fluctuate and are therefore only binding after express confirmation of the order by NV DEROOSE PLANTS.
2.4. The order is binding on the customer. NV DEROOSE PLANTS is only committed after express confirmation of the order placed.
2.5. Orders placed with or accepted by agents of NV DEROOSE PLANTS are binding only after written order confirmation by NV DEROOSE PLANTS.
2.6. A reservation of title clause is applicable to every sale by NV DEROOSE PLANTS: the transfer of title of the goods sold will take place only after complete payment of the outstanding debt, including principal, interests and costs. Notwithstanding the reservation of title clause, the risk in relation to the goods is transferred to the buyer at the time of delivery.
3. Cancellation of an order
3.1. In case of (full or partial) cancellation by the buyer, he will owe damages to NV DEROOSE PLANTS of at least 40% of the sale price as mentioned on the order. If, as a result of the cancellation, the products in question prove to be unsellable or sellable only at a much lower price (at least less than half of the original sales price) NV DEROOSE PLANTS reserves the right to make a claim against the buyer for the difference between the final sale price and the contractual compensation. The parties are obligated to cooperate in order to limit the damage as much as possible.
3.2. If NV DEROOSE PLANTS is not able to perform the contract either in full or in part due to force majeure, crop failure, diseases, viruses and/or parasites, both at the NV DEROOSE PLANTS and on the premises of companies acting as suppliers to NV DEROOSE PLANTS, the latter reserves the right to cancel the order. Said cancellation does not entitle the buyer to any damages.
3.3. The following are included as cases of force majeure: accidents, war, strikes, lock-out, riot, lack of transportation equipment, fire, quarantine measures and other hindrances due to government measures and exceptional weather conditions.
4. Delivery and complaints
4.1. Delivery terms are provided only for information and NV DEROOSE PLANTS is not bound by them. A normal delay in the delivery does not entitle the buyer to any damages and does not lead to termination of the contract.
4.2. The time of delivery is the day on which NV DEROOSE PLANTS informs the buyer that the goods are ready for collection. The goods are considered to be delivered and accepted at the premises of NV DEROOSE PLANTS.
4.3. In case an agreement has been reached for the goods to be shipped, this will take place at the risk of the buyer. The transportation costs are always paid by the buyer.
4.4. If the buyer does not collect the goods on the agreed date, continuing storage will take place entirely at the risk of the buyer. The purchase price will remain payable. The risk of deterioration in quality that may arise due to longer storage will be borne entirely by the buyer.
5.1. Payment must be made at the latest 30 days after the invoice date or by the alternative due date stated on the invoice.
5.2. In case of failure to make timely payment, the buyer will owe interest due to late payment on the purchase price, in application of the Law of 02.08.2002 on combating late payments in commercial transactions. Thefailure to make timely payment will also result in a 10% surcharge on the purchase price with a minimum of 125 EURO, on the due date.
5.3. In the event of continuing non-payment of invoices, NV DEROOSE PLANTS reserves the right to claim all outstanding invoices before making any further deliveries.
5.4. If NV DEROOSE PLANTS determines that the buyer is in financial difficulties and/or has requested legal protection measures from its creditors, NV DEROOSE PLANTS reserves the right to refuse delivery.
6.1. Complaints regarding visible defects in the sold and/or delivered goods or services must be reported to NV DEROOSE PLANTS by registered post within 8 days of receipt of the goods. After this term the buyer will be considered to have received the goods in good condition.
6.2. In case of hidden defects that were not known to NV DEROOSE PLANTS at the time of delivery, the latter shall bear no liability. The buyer must inform NV DEROOSE PLANTS within 8 days of noticing the hidden defects, by registered post, and must invite him in said notification to come and confirm or arrange third-party confirmation of the alleged defect in an uncontested report.
7. Guarantees and limitation of liability
7.1. NV DEROOSE PLANTS guarantees that the plant material to be delivered meets the requirements set by the Belgian government.
7.2. The phytosanitary certificate issued by the Belgian plant protection service is considered by the parties as valid, even in case of its rejection by the authorities in the country of destination.
7.3. NV DEROOSE PLANTS does not guarantee growth and blooming of the products delivered.
7.4. The liability of NV DEROOSE PLANTS for damage to the goods and other damages under this agreement will never exceed the sales price (including VAT) that was paid for the specific goods for which damages are claimed. Furthermore, NV DEROOSE PLANTS will never be liable for consequential loss resulting from a breach of the guarantee.
7.5. All the desired growing information will always be provided to the buyer by or on behalf of NV DEROOSE PLANTS to the best of its ability, but all liability for this on the part of NV DEROOSE PLANTS is excluded.
8. Protection under the Plants Breeders’ Rights Act or contractual protection of varieties delivered
8.1. Seed stock and plant material of varieties that were delivered by NV DEROOSE PLANTS, regardless of whether the aforementioned material is covered by any plant breeders’ protection requested or granted in any country or protected by any contractual stipulation, may not:
be used for production or further reproduction of the variety,
be treated for reproduction,
be used for trade,
be exported or imported,
h) be kept in stock for any of the said actions,
g) be treated by the buyer in any way contrary to Article 1.5 of these terms and conditions
8.2. NV DEROOSE PLANTS reserves the right to enter the premises of the buyer and/or to access land under his management, wherever the delivered seed stock or plant material is located, in order to inspect the material delivered and/or to assess whether the buyer is complying with the provisions of this contract. NV DEROOSE PLANTS shall inform the buyer of his arrival in advance in a timely fashion.
8.3. The customer is obligated to inform NV DEROOSE PLANTS, immediately and in writing, if the customer finds a mutant in the variety delivered by NV DEROOSE PLANTS. By written request of NV DEROOSE PLANTS the buyer shall provide NV DEROOSE with test material of the mutant within a period of two months after receipt of this request and if requested shall allow perusal of his administrative documentation, such as invoices, emails etc. that are relevant to further examination.
8.4. The buyer, who finds a mutant in the variety delivered by NV DEROOSE PLANTS requires express and written permission from NV DEROOSE PLANTS to exploit the mutant, i.e. to carry out any of the actions related to all materials of the variety, including harvested material (consequently including flowers, plants and/or plant parts) as mentioned in Article 8.1 of this agreement.
8.5. The buyer is obligated to provide all cooperation that is desired by NV DEROOSE PLANTS, including cooperation in collecting material for proof in the event that NV DEROOSE PLANTS becomes involved in any legal proceedings regarding plant breeders’ rights or other industrial ownership rights.
9. Intellectual property and know how of NV DEROOSE PLANTS.
9.1. Without prejudice to the provisions of Article 8, the customer irrevocably and definitively renounces any claims against NV DEROOSE PLANTS with respect to intellectual property rights, including patents, plant breeders’ rights, know-how and similar rights, related to the material delivered and services provided by NV DEROOSE PLANTS, of which NV DEROOSE PLANTS (or the agency that issued the license) is and remains the owner at all times.
9.2. Orders for goods and/or services, deliveries by NV DEROOSE PLANTS, payment of an invoice, or any other commercial transaction undertaken by NV DEROOSE PLANTS and/or the customer can never result in the transfer of any intellectual property rights or any (tacit) licensing by NV DEROOSE PLANTS.
9.3. The customer undertakes to inform NV DEROOSE PLANTS immediately, in writing, if the customer becomes aware of any violation of the intellectual property rights and know-how of NV DEROOSE PLANTS and the customer shall, at the first request from NV DEROOSE PLANTS, pass on any useful information so that NV DEROOSE PLANTS can take legal or practical steps in response to such a violation.
9.4. The buyer undertakes not to violate the intellectual property right and the rights on the know-how of NV DEROOSE PLANTS, which means, without limitation, that the customer shall not imitate or reproduce the material delivered, shall not make copies of it or in any other way use it or allow it to be used in a way that violates the aforementioned rights. Non-compliance with these stipulations constitutes grounds for termination of the agreement at the expense of the buyer, without prejudice to the entitlement of NV DEROOSE PLANTS to compensation in full for damages resulting from said violation.
9.5. NV DEROOSE PLANTS reserves the right, at its own expense, to inspect the customer, whenever it deems this necessary or useful, in order to check compliance with these general terms and conditions. NV DEROOSE PLANTS shall inform the customer of such an inspection at least 5 business days in advance and must then be given access to the buildings, land, computers, administration and other places and/or documents of the customer relevant to said inspection, whereby the customer shall provide full cooperation for the execution of such an inspection. This stipulation will be applicable for up to 1 year after each delivery.
10. Competent court
10.1. Belgian law is expressly declared to be applicable to this agreement and its consequences.
10.2. The Courts of Ghent shall be solely competent in case of any dispute.