Applicability
1a. All offers, quotations, sales, deliveries, licences and orders (for breeding, selection, propagation, processing or laboratory examination) performed / issued by one of the companies belonging to the group of Preesman Holland B.V. and/or Preesman Royalty B.V. and/or Preesman Plants B.V., having their registered offices in Rijsenhout in the Netherlands, by the Company as well as companies and partnerships associated with Preesman Holding B.V., including its subsidiaries (hereinafter collectively called “the Company”) shall be governed by these General Terms and Conditions.
1b. If these General Terms and Conditions have once applied, they shall also apply without further explanation to new agreements between the Company and the other party (hereinafter called: “the Customer”), unless expressly excluded. If the provisions of these General Terms and Conditions are amended in due course by the Company, but on the whole their substance remains unchanged, then the new amended provisions of these amended General Terms and Conditions shall apply instead of the present ones.
1c. The general terms and conditions of the Customer of the Company are explicitly rejected. If and to the extent that parties expressly agree in writing that the general terms and conditions of the Customer apply, then the present General Terms and Conditions shall prevail in so far as has not been expressly agreed otherwise in writing.
1d. Variations to these General Terms and Conditions shall be valid only when expressly agreed in writing. Variations shall apply in that case only to those agreements to which this variation has been expressly declared applicable in writing.
1e. The clauses of these General Terms and Conditions concerning obligations and liability of the Company shall also be stipulated on behalf of third parties, who are deployed by or on behalf of the Company in the relationship with the Customer. These parties may directly invoke these General Terms and Conditions in relation to the Customer in order to defend themselves against any liability claims. Limitations of liability that are related to amounts shall apply in respect of the entire liability of the Company and of the third parties it has deployed collectively in each case, and shall not cumulate per party claimed against.
1f. All orders shall be exclusively accepted and performed by the Company.
Offer, Order and Agreement
2a. All quotations and price estimates of the Company shall be made without any commitment, unless expressly otherwise provided by the Company in writing.
2b. An order shall be deemed to have been accepted by the Company only after the mailing of a written confirmation by the Company or after the Company has undertaken one or more acts for the performance of the order, also in the event that an order has (already) been confirmed by an intermediary of the Company.
2c. The company accepts a plant order subject to the availability of the plant material that meets the relevant quality requirements, purchased from third parties by the company itself. Entire or partial failure of the cultivation for whatever reason shall discharge the Company from its obligations of delivery (on time) of the plant material ordered – in so far as the cultivation of the plant material has failed – and other obligations, save for intent or gross negligence on the part of the Company.
2d. In the event that Licensee cancels this Order before planting, an amount, equal to 25% of the agreed total amount of royalty shall be due by Licensee to Licensor, which amount shall have to be paid before the above-mentioned first week of planting.
Financial Stipulations
3. The prices charged by the Company are exclusive of VAT and packaging costs, import and export levies imposed by the Netherlands or a foreign government, transport costs, loading and unloading, quality control, the costs of insurance and of compulsory inspection and examination, unless expressly otherwise agreed. The Customer shall also be obliged to reimburse expenses and compensation, since these – unless expressly agreed otherwise in writing – are not included in the agreed price.
Payment
4a. Unless parties have expressly agreed otherwise, the Customer shall pay the agreed price (including any additional costs) to the Company within 30 days of the date of the invoice. The Company shall be entitled to demand an advance payment on the gross invoice amount, which shall be deducted from the total purchase price after receipt. The Company shall be entitled to pass on any exchange rate differences.
In case a discount payment is agreed between the Company and Customer and Customer does not fulfill it’s payment obligation in due time, the discount will be not applicable and Customer shall be obliged to pay the whole amount due without any discount.
4b. If the Company has reasonable doubts about the payment capability of the Customer, the Company may postpone the delivery of the goods until the Customer has provided sufficient security for the payment and/or to demand payment.
4c. All payments shall first serve as payment for interest and costs and then, in each case, for payment of the longest outstanding invoice.
4d. If the Customer fails to comply or fails to comply on time or in full with any obligation from this agreement, it shall be, in so far as is necessary after having been notified by the Company of its default to that end, in default and is obliged to compensate to the Company all costs as well as a contractual default interest of 1% per month on the invoice amount stated in the invoice, with effect from the date of the notice of default or from the moment that it is in default. If the Customer is in default, then all other outstanding amounts owed in the name of the Customer to the Company shall become immediately due and payable. If the Customer remains in default, its right to sell flowers of the relevant variety supplied or licensed by the Company shall lapse.
4e. The Customer shall not be entitled to suspend its payment obligations to the Company and/or to set off its payment obligations against payment obligations of the Company to the Customer. The Customer shall not be entitled to rescind the agreement with the Company if the Customer is in default.
4f. All costs, including debt-collection/bailiff’s and lawyer’s fees, both judicial and extrajudicial, which are incurred by the Company in order to realise compliance with the Customer’s obligations shall be borne by the Customer. The extrajudicial (debt-collection) costs shall amount in any case to 15% of the invoice amount, but also to a greater amount if the Company shows that it has incurred more (debt-)collection costs, subject to a minimum of € 500.
4g. In case Customer has to pay withholding tax over the total royalty fee to the tax authorities, the amount of the withholding tax shall be settled with the amount of the royalty due to the Company only if Customer has submitted to the Company a prove of payment in writing of such withholding tax and if such payment of the withholding tax has been made in accordance with the latest Tax Law of the country of residence of the Customer.
Delivery
5a. The delivery of goods by the Company shall be made Ex Works as provided in the Incoterms 2000. The costs of (import/export) levies, transport, loading and unloading, insurance, quality control, (compulsory) inspections and examination shall be borne by the Customer. The Customer is not entitled to use a different delivery address than the address stated on the confirmed order or agreement with the Company.
5b. The risk of loss of and/or damage to the goods shall be transferred to the Customer upon delivery (Ex Works), even if the delivery takes place at an earlier time than agreed between the parties.
5c. If the Customer is unable to take delivery of the goods (to have delivery of the goods taken) at the agreed time, the Company – if and in so far as is possible – shall keep the goods until the delivery can as yet be taken, on the understanding that the Customer shall compensate to the Company all damage and costs – including labour, storage and transport costs – that it has incurred as a result of the Customer’s failure to take delivery at the agreed time. As from the time at which the Customer should have taken delivery of the goods, the goods shall be in that case for the account and risk of the Customer (contrary to the other provisions of these General Terms and Conditions).
5d. In the event of delay or obstruction in delivery, regardless of reason, the Company may charge the costs arising therefrom for the Company to the Customer, save in the event of demonstrable intent or deliberate recklessness on the part of the Company.
5e. The delivery time given is not a deadline. Therefore, in the event of late delivery the Company must be notified in writing of its default. The Company shall not be liable for the consequences of delay in delivery, regardless of how this delay may have arisen, whereas if the delivery time is exceeded, the Customer shall in no event be entitled to not comply with any of its obligations arising from the agreement.
5f. If the delivery of a variety ordered is not possible, regardless of reason, the Company shall be entitled to deliver a variety that is, as far as possible, equivalent or to cancel the order/agreement.
Claims
6a. The Customer shall be responsible for the inspection of quantities and quality of goods delivered. The Customer shall be deemed to have carried out the inspection upon delivery.
6b. Claims must be submitted verbally immediately after delivery and for the rest must be submitted by registered letter to the Company within 5 days after delivery. The Company shall be entitled at all times to verify claims (have claims verified).
6c. If the goods delivered have been processed (or services rendered), the Customer shall be deemed to have unconditionally accepted the goods. The customer shall limit possible subsequent damage to a minimum.
6d. The Customer may not set off any compensation claim and such a claim shall not entitle him to delay payment of the outstanding invoice amount or not to pay it at all.
Packaging / Wrapping
7a. Non-reusable packaging material/wrapping, at the Company’s discretion, shall not be taken back by the Company and (recycling/destruction) shall be for the Customer’s account.
7b. All other packaging/wrapping shall remain the property of the Company and shall be provided to the Customer on loan. The Company shall be entitled to charge a separate deposit for them. This packaging/wrapping must be returned empty, clean, in good condition and free of pollution for the Customer’s account immediately after delivery. Defects and/or pollution/contamination found by the Company in packaging/wrapping received back shall be repaired/undone for the Customer’s account.
Retention of Title
8a. The Company shall retain the title to goods delivered by it until the Customer has fully complied with all obligations, including full payment of the purchase price due and/or any expenses. As long as the goods have not been paid in full and the Customer has failed for the rest to comply with its obligations to the Company, the Company shall be irrevocably entitled and authorised to repossess the goods delivered by it and which are still at the Customer’s company without judicial intervention, regardless of its further actions against the Customer.
8b. As long as the Customer has an outstanding debt, regardless of reason, to the Company, the Customer may not have the disposal of the goods delivered by the Company or unite said with the ground or enter into any legal acts in this respect (including, but not exclusively, the pledging of the good) until the Company has consented to it in writing and to the conditions under which the aforementioned are carried out.
8c. In the event of late compliance with its (financial) obligations to the Company, the Customer is obliged at the first demand to that end, in the event that the Customer has delivered goods to third parties, to transfer or pledge (at the Company’s discretion) to the Company all its rights in this respect against this third party, pro rata to that which the Customer still owes to the Company in that case. For the purpose of compliance with this obligation the Customer pledges now as for then all its rights arising from the delivery against said third parties. As soon as the Customer fails to comply on time with its payment obligations to the Company, the Company shall be authorised to notify the aforementioned third parties of the present pledge in order to establish the pledge. The Customer is obliged to provide all necessary assistance and cooperation herewith.
Security
9. In the event of the Customer’s failure to make timely and/or full payment in cash or if financial circumstances of the Customer give justified reasons to assume that it shall not comply with its obligations to the Company, the Customer is obliged – at the first request of the Company – to provide security and/or payment with other goods (if sufficient security cannot otherwise be provided) – of which the value shall be bindingly determined by the Company – for compliance with all its obligations.
Intellectual Property Rights/Plant Breeder’s Rights
10a. Without prejudice to the provisions of the applicable laws on varieties rights, the trademark and patent legislation, the provisions of the following paragraphs of this article shall apply to protection of varieties pertaining to plant breeder’s rights, trademark rights, patent rights or contract.
10b. All intellectual property rights to all goods that are delivered or made available in any way by the Company to the Customer shall exclusively vest in the Company. Unless agreed in writing, the delivery or making available of goods to the Customer shall not entail transfer of the intellectual property rights.
10c. The Company may grant specific rights of use to the Customer with respect to the intellectual property rights of the Company, whether against payment or not of agreed royalties, by means of written agreement. Article 4 of these terms and conditions shall apply mutatis mutandis to the payment of agreed royalties for such a right of use.
10d. Unless otherwise agreed in writing, plant material of varieties, which are protected by plant breeder’s rights, trademark rights, patent legislation or by means of a contractual perpetual clause, may not be used by the Customer for propagation or offered as propagation material.
10e. The product, which is obtained from the plant propagation material delivered to the Customer under written (licence) agreement, may only be sold by the Customer under the variety name in question or any brand name, save for the written consent of the Company.
10f. If the Customer finds a mutation in a variety, then it is obliged to immediately notify the Company thereof by registered letter and to provide (material of) this mutation free of charge to the Company at the Company’s first request, for evaluation in the manner to be independently determined by the Company and at its discretion.
10g. Any plant breeder’s rights and/or other rights of the mutant in question shall fully belong to the Company, without the Customer being entitled to any fee and/or other rights.
10h. The Customer indemnifies the Company against all damage as a result of an infringement of plant breeder’s rights, patent legislation and/or perpetual clauses by the Company within the framework of the acts carried out for the performance of an order to the Company.
10i. The Customer is obliged to immediately inform the Company of infringements or potential infringements of intellectual property rights of the Company that have come to its attention. The Company shall determine whether and how legal action shall be taken against such infringements. The Customer shall not be authorised to take legal action against such infringements.
10j. The Customer is obliged at the Company’s first request to provide all assistance and cooperation in the event that the Company becomes involved or threatens to become involved in proceedings in respect of plant breeder’s rights and/or other intellectual property rights.
10k. If the Company has agreed a royalty fee with the Customer that is related to the proceeds of the flower sale of the Customer, the Customer is obliged at the Company’s first request to allow inspection of its books by an auditor to be appointed by the Company.
Force Majeure
11. The Company shall not be liable for non-compliance, late or unsatisfactory compliance with its obligations, if, in so far and for as long as the compliance has been delayed, obstructed or hindered in part or in whole, temporarily or permanently, as a result of a circumstance that cannot be attributed to major error on the part of the Company. These circumstances shall include in any case but are not limited to: destruction, diseases, plagues, strike, water, frost and storm damage, sit-down strike, failed harvest, growth disorders, computer failures, electricity/gas failures, mechanical defects, lighting damage, damage that has arisen owing to products supplied to the Company, such as propagation material, compost, rock wool, chemicals (such as paint, fertiliser and pesticides) and, further, other circumstances that have a disruptive effect on the regular course of the Company’s business or that of its supplier companies.
Confidentiality
12. The Customer is obliged to maintain as confidential all confidential information of the Company provided to it and to ensure that its employees and any third parties involved by it also maintain this information as confidential. In the event of failure to comply with this obligation, the Customer shall be due to pay to the Company an immediately due and payable penalty of € 10,000 (ten thousand Euros), without prejudice to the Company’s right to seek full compensation.
Termination
13a. The Company shall be entitled to terminate an agreement without notice of default and any legal liability to pay compensation and, unless expressly otherwise indicated hereinafter, without observance of any term of notice, if one or more of the following events – in so far as is applicable to the Customer – occur, without prejudice to the Customer’s liability to pay compensation: if the Customer applies for or obtains – whether or not provisionally – a moratorium of payments, the Customer is declared insolvent or a petition for liquidation is filed, or the Customer otherwise becomes insolvent; the Customer requests a private debt arrangement from more than two creditors other than the Company; attachment is levied on the Customer and this attachment is not cancelled within a reasonable period of time; the Customer discontinues, merges or divides its enterprise, winding up of the legal person; the Customer transfers its enterprise, at any rate (in parts) a substantial part/parts thereof, or a change in the control of the Customer; non-compliance with any provision of an agreement, in this latter case only after the Customer has been notified of its default and has failed to as yet comply with its obligations for a period of two weeks thereafter. If the agreement is terminated as a result of an event as aforementioned, then all amounts that the Customer owes or shall appear to owe to the Company under an agreement between the Company and the Customer or the performance thereof, shall become immediately due and payable. Termination of an agreement pursuant to the aforementioned provisions shall be without prejudice to all rights to compliance with existing obligations to the Company or any claim of the Company to compensation.
13b. If the contract is terminated unilaterally by the Customer, the latter shall be obliged to pay the whole of the agreed amount of royalties to the Company. If the Customer terminates the contract unilaterally within a period of less than 3 months before the agreed delivery, the Customer shall also pay the agreed price of the plants, irrespective of whether or not the Company has started production of the goods.
13c. If Customer has done a prepayment and has agreed with the Company to use the prepayment for a flower variety of the Company to be licensed to Customer in the future, Customer is obliged to choose such a variety and to conclude a License Agreement with the Company within one year as from the prepayment date. If the term of one year has expired, Customer shall not have the right to claim the amount of the prepayment from the Company and the amount of the prepayment shall be for the benefit of the Company.
Liability
14a. The Company shall not be liable for damage that the Customer incurs through failings of the Company and/or its (non-) subordinate assistants in the performance of any agreement concluded between parties, unless the damage is the direct result of intent or gross negligence on the part of the Company. The Company shall in no event be liable for damage that has arisen as a result of acts charged by the Customer to the Company, nor shall it be liable for damage as a result of disappointing growth or bloom (both as regards the quality and the quantity of the plants and flowers, including diseases, disorders or any deviations whatsoever) or pricing upon the sale of harvested products. In the event of liability of the Company, this liability shall be limited to direct damage.
14b. The Company shall not be liable however/moreover for damage that has arisen at the company of the Customer or third parties, which damage is the result of acts and/or omissions of (non-) subordinate assistants and/or other third parties deployed by the Company.
14c. In cases of intent or gross negligence, as described in Article 14a, the liability of the Company and the third parties engaged by the Company for the damage incurred by the Customer and their total compensation obligation shall be limited to a maximum of half the amount of the fee/price (including VAT) agreed for the agreement in question. If the agreement is mainly a term agreement for a period of more than one year, the agreed fee/price shall be set at the total amount of fees/prices (excluding VAT) agreed for one year. Nevertheless, the total compensation obligation of the Company shall not amount in any event to more than € 100,000 (one hundred thousand Euros).
14d. The Customer is obliged to compensate and indemnify the Company against all claims of third parties that arise from or are related to the agreement between the Company and the Customer, save in so far as these claims are the result of intent or gross negligence on the part of the Company.
14e. A reason that could constitute a claim for damages must be submitted in writing to the Company not later than within 1 (one) month after the Customer has discovered or could have reasonably discovered the damage, failing which the right to compensation shall lapse.
14f. The provision of cultivation supervision to customers shall never give rise to liability on the part of the company.
Transferability
15. The Company shall be entitled to transfer – inter alia, in connection with transfer of the enterprise of the Company – in part or in whole its rights and/or obligations in respect of the Customer to a third party, who shall then replace it as contracting party. The Customer consents irrevocably and unconditionally now as for then to this contract transfer. The contract transfer shall be realised as soon as the Company has notified the Customer thereof in writing, also on behalf of the third party who is assuming the rights and obligations in question.
Applicable Law; authorized judge
16. All agreements that the Company enters into shall be governed by the laws of The Netherlands. All disputes arising in connection with such agreements, or further agreements resulting there from, shall be finally settled in accordance with the Arbitration Rules of the Netherlands Arbitration Institute. The arbitral tribunal shall be composed of one arbitrator. The place of arbitration shall be Amsterdam, The Netherlands. The arbitral procedure shall be conducted in the English language.
Others
17. If any provision of these General Terms and Conditions, regardless of reason, is invalid in whole or in part, then the agreement and these terms and conditions shall remain in full effect for the rest, whereas parties as regards the invalid provision shall be deemed to have agreed that which comes closest in a legally validly manner to the import of the invalid provision. The Company shall be entitled to amend these terms and conditions. The amendment shall apply as from the moment the Company has informed the Customer thereof in writing.