General Terms and Conditions of Sale and Delivery of Duif's Florist Articles B.V., also trading under the name DUIF INTERNATIONAL with its registered office in Aalsmeer and its principal place of business at the address Japanlaan 18 in (1432 DK) Aalsmeer, registered with the Chamber of Commerce in Amsterdam under number 34066480.
Article 1 Definitions
Duif: Duif's Florist Articles B.V., a private company with limited liability, also trading under the name DUIF INTERNATIONAL;
Buyer: any counterparty of Duif;
Products: all goods delivered or to be delivered by Duif in the performance of an Agreement and all Services;
Services: all work (in any shape and under any name) that Duif performs for the Buyer, whether or not including the delivery of Products;
Agreement: any agreement concluded with the Buyer, any amendment or addition to that Agreement or further arrangement, as well as all acts, including legal acts, to prepare and/or perform an Agreement.
Article 2 Applicability
2.1 These terms and conditions of sale and delivery apply to all requests for an offer, orders and/or Agreements regarding the sale and delivery of Products and/or the performance of Services and the execution thereof by Duif.
2.2 Deviations from or additions to these terms and conditions of sale and delivery require the express written permission of Duif. When an amendment and/or addition is agreed, the amendment or addition only applies to the Agreement from which it is derived.
2.3 The application of any purchase conditions or other conditions of the Buyer (express or implied) is expressly rejected by Duif, unless expressly otherwise agreed in writing.
2.4 If one or more provisions in these terms and conditions of sale and delivery are void or nullified, the other provisions will remain in full force. In the case of nullity or annulment, the parties will enter into discussions in order to agree on new provisions to replace the null and/or void provisions, whereby the purpose and meaning of the void or nullified provisions are taken into account as much as possible.
Article 3 Agreement
3.1 All offers made by Duif are without any obligation. All examples, images, models and accompanying specifications of Products that are sent along with an offer from Duif, shown by Duif or included on Duif's website, only serve to give a general impression of what is offered. The Buyer cannot derive rights from deviations that are not considered by Duif (in its absolute discretion) to represent a material change to what is offered, and these do not give the Buyer the right to refuse payment or receipt of the Products delivered or Services rendered.
3.2 Duif retains the right to withdraw an offer made by it within two (2) days after acceptance of that offer. Acceptance of an offer made by Duif can only take place by means of a written notification from an authorised person.
3.3 If the acceptance deviates from the offer made by Duif, this acceptance will be considered by Duif to be an invitation to make an offer. In that case, Duif will submit a new written offer, to which Articles 3.1 and 3.2 apply.
3.4 An Agreement will not become effective until an order is accepted by Duif or, if this is earlier, until Duif has started the implementation of the Buyer's order.
3.5 Duif has the right, without giving reasons, to refuse to accept orders or assignments or only to accept these subject to the condition that shipment takes place by cash on delivery or after receipt by Duif of an advance payment.
Article 4 Prices, invoicing and payment
4.1 Unless otherwise agreed in writing, the specified or agreed prices for delivery apply EXW Aalsmeer, or EXW Bielsk Podlaski, Poland (Duif warehouse) (Incoterms 2010), and are exclusive of packaging costs and shipping costs, exclusive of loading and unloading charges and exclusive of value added tax.
4.2 Duif's prices are based on the amount of wages, wage costs, national insurance contributions and government charges, cargo, insurance premiums, prices of raw materials, materials, auxiliary materials, exchange rates of foreign currency and of all other costs applicable during the offer or contracting date. In the case of an increase of one or more of these factors, Duif is entitled to increase the price payable under an Agreement or contracting price accordingly. If an order is placed without a price agreed in advance, this order will be carried out, independent of any delivery made previously, at the price applicable on the day the order was received.
4.3 On announcement of levies or special taxes after an Agreement has been concluded, as well as in the event that these levies or taxes are adjusted in so far as they apply during the conclusion of an Agreement, Duif has the right to increase the agreed price accordingly and to invoice the Buyer for that price increase, even if that price increase was already foreseeable at the time the Agreement was made.
4.4 Payment must always take place upon ordering, or, if the Buyer has sufficient credit facility with Duif, within thirty (30) days after the invoice date, unless otherwise expressly agreed in writing.
4.5 In the case of a late payment, Duif is authorised to postpone or suspend delivery of other Products or Services sold by it to the Buyer until the Buyer has completely met its payment obligations, including payment of contractual interest due.
4.6 If payment has not taken place on the 30th day after the invoice date, the Buyer is in default by operation of law without any notice of default required, and the Buyer will owe the statutory commercial interest rate under Section 6:119a of the Dutch Civil Code.
4.7 If the Buyer applies for a moratorium (or similar foreign scheme) or files a winding-up petition or a winding-up petition is filed against it or, in the event that it concerns a natural person, he is allowed to participate in the statutory debt management scheme for natural persons (or similar foreign scheme), the invoices due are immediately due and payable.
4.8 If the Buyer does not meet its payment obligations on the deadline (article 4.6), Duif is authorised to turn the claim over for collection. The judicial and extrajudicial costs will be for the account of the Buyer. The extrajudicial costs will be calculated in accordance with the Extrajudicial Collection Costs (Standards) Act and the accompanying graduated scale.
Article 5 Delivery and delivery time
5.1 Unless expressly agreed otherwise in writing, Duif will deliver the Products in accordance with the delivery condition EXW Aalsmeer, the Netherlands, or Bielsk Podlaski, Poland (Duif warehouse) (Incoterms 2010).
5.2 If Duif arranges the transport at the Buyer's request, Duif will only do this on behalf of the Buyer and for the Buyer's account and risk. Duif excludes any liability for the assignments given by it in connection with the transport. If the Buyer has not given special instructions for the choice of carrier, Duif is entirely free in its choice.
5.3 Duif may decide to arrange for the transport of the Products to the Buyer for orders exceeding a value to be determined by Duif. If Duif proceeds to do so, this will be considered to be a request of the Buyer to Duif to arrange the transport, whereby the risk will remain for the account of the Buyer.
5.4 in case 5.2 or 5.3 applies, the Buyer must then arrange for insurance for Products in transit. This insurance will never be included in the transport.
5.5 If Duif performs any customs formalities or similar actions for the Buyer in connection with the settlement of the purchase agreement, these actions will always be for the account and risk of the Buyer.
5.6 The Buyer guarantees Duif that it has the required permits for the import and transit of Products bought by the Buyer, and the Buyer indemnifies Duif against all claims, taxes or penalties of third parties, including any national or international government, or any European authority, with respect to such permits.
5.7 Delivery periods indicated by Duif are without obligation and can never be considered deadlines.
5.8 Duif will never be in default by the simple expiry of the agreed delivery periods. The Buyer may give a written notice of default, in which Duif is given a reasonable period to meet its obligations.
5.9 Expiry of a delivery period will never give the Buyer the right to any compensation for damages or dissolution of the agreement or any other action against Duif. This will only be different in cases of wilful default or gross negligence of Duif or its managing staff, or if the delivery period if exceeded by more than three weeks. The Buyer will then have the right to dissolve the agreement, but without being entitled to any compensation for damages.
5.10 Partial deliveries will be allowed at all times.
Article 6 Non-acceptance
6.1 If no other delivery terms have been agreed upon than EXW Aalsmeer, the Netherlands, or Bielsk Podlaski, Poland (Duif warehouse) (Incoterms 2010), the Buyer must collect the Products bought by it after creation of the relevant Agreement as soon as possible, in any case within 48 hours, or have them accepted by a carrier indicated by the Buyer, either in Aalsmeer, the Netherlands, or in Bielsk Podlaski, Poland, unless otherwise agreed in writing.
6.2 If the Buyer for any reason whatsoever does not accept the Products offered by Duif for delivery or does not accept them in time, the Buyer will be sent an invoice nevertheless and it will nevertheless be required to comply with the agreed payment conditions as if the Products had been delivered and accepted by it.
6.3 If the Buyer does not accept the Products delivered by Duif, Duif will be authorised to store the Products at a site chosen by Duif for the account and risk of the Buyer. Duif will not be held liable to compensate any loss to the Buyer - including but not limited to loss as a result of a decline in quality or weight - in connection with the non-acceptance of the Products delivered.
Article 7 Complaints
7.1 On delivery, the Buyer is obliged to check the quantity and identify any damage visible on the outside of the Products delivered. If the Products are made available to a carrier, the Buyer must have these Products inspected by a person designated by it. If no person has been designated, the driver who accepts the Products on behalf of the Buyer will be deemed to inspect the Products on behalf of the Buyer.
7.2 The Buyer must submit complaints with regard to the quantity and any damage and/or defects visible on the outside in writing as soon as possible but in any case within 48 hours of delivery as referred to in Article 5. In default, the quantities, stated on consignment notes, delivery notes, invoices or similar documents will be considered to be correct and the Products will be deemed to have been delivered without any damage visible on the outside. If the shortfall in the quantity delivered is less than 10%, the Buyer will be obliged to accept the delivery in its entirety against a proportional reduction of the purchase price.
7.3 The Buyer must submit in writing to Duif complaints regarding damage and/or defects that were not visible during delivery as well as any other complaints as soon as possible, but in any case within 5 days of delivery as referred to in Article 5, or 5 days after any defects have been determined or could reasonably have been determined by the Buyer., In default, the Buyer will be deemed to have approved the delivery.
7.4 If the Buyer has any complaints with regard to the quality of the Products delivered, it must have the Products assessed by a suitably qualified expert and must offer Duif the opportunity to have a counter-assessment carried out, at the same time or option) any other time.
7.5 Complaints that have not been submitted to Duif in time or that have been submitted incorrectly do not have legal effect and release Duif from any liability.
7.6 If it is determined, with observance of the provisions in Article 3.1, that the Products delivered do not comply with the Agreement, Duif will make every effort to deliver an alternative Product in consultation with the Buyer as soon as possible. The payment conditions as laid down in Article 4 will remain in full force.
Article 8 Liability
8.1 If the Buyer wishes to use the option of ordering via Duif's website, it will receive a unique log-in code from Duif with which it can place orders. After Duif has made the log-in code known to the Buyer, the Buyer will bear the risk of incorrect and/or unauthorised use of this log-in code.
8.2 Duif is not liable for any loss due to incorrect or incomplete information on its website, including the description of the Products offered by it and the related data, including indicated delivery times. Each use of the website data is entirely for the account and risk of the Buyer.
8.3 Duif is not liable for any loss as a result of (temporary) unavailability of Duif's website or webshop.
8.4 Moreover, Duif only accepts liability for loss incurred by the Buyer that is a result of an attributable breach in the performance of its obligation or of an unlawful act, if and in so far as this liability is covered by insurance and event exceed the amount of that insurance.
8.5 If the insurer does not pay out for whatever reason, or if the loss is not covered by the insurance, the liability is in all cases limited to the invoice amount.
8.6 Any liability for loss of profits, consequential loss and/or indirect loss is expressly excluded. Duif is also not liable for loss that can be attributed to the actions or omissions of the Buyer or a third party engaged by the Buyer.
8.7 Contrary to the previous paragraphs and notwithstanding the provisions in this article, Duif does not accept liability for loss as a result of expiry of delivery periods, nor for consequential loss or loss or profits.
8.8 Duif is not liable if the shortcoming is the result of force majeure, as referred to in this article.
8.9 The Buyer is always fully liable towards Duif for discharge of customs and transit documents, including but not limited to T1 and T2 documents.
8.10 Immediately on request, the Buyer will provide Duif with sufficient security for the consequences of possible non-discharge of the forementioned documents, such as owing import duties and VAT, fines and interest.
8.11 The exclusions or limitations for the liability as included in these terms and conditions do not apply in so far as the loss is the result of wilful default or gross negligence by Duif or its managing employees.
8.12 The Buyer undertakes to indemnify Duif against claims of third parties for whatever reason, relating to Products delivered by Duif, particularly by reason of personal injury or death.
8.13 In the case of force majeure (not being a breach attributable to Duif in the performance of its obligations), Duif's delivery obligation will be suspended for the duration of the situation of force majeure.
8.14 Force majeure includes in any case, but is not limited to, war, war damage, civil war, mobilisation, riots, wilful damage, fire, water damage, flooding, strikes, factory occupation, lockout, import or export impediments, government measures, defects to machines, disruptions in the supply of energy, non-timely delivery of the Products sold, raw materials or auxiliary materials required for that purpose, whether affecting Duif's business or that of the third parties who are directly or indirectly involved in supplying Duif with the Products and/or the required materials and or raw materials, as well as in storage or during transport, under their own management or otherwise, and furthermore all other circumstances independent of Duif's control, even if these were already foreseeable when the Agreement was concluded.
8.15 If the performance of the Agreement has become impossible due to the circumstances referred to in Article 8.11 for a period of more than fourteen (14) days, each party has the right to dissolve the Agreement without judicial intervention by means of an express written notification.
8.16 In the event that one of the events referred to in Article 8.11 takes place, Duif is never obliged to pay any compensation for damages to the Buyer.
8.17 If one of the circumstances referred to in Article 8.11 occurs and Duif has already complied with part of its obligations, or if it can comply with only part of its obligations, it is entitled to separately invoice the part already delivered or the part that can be delivered, and the Buyer is obliged to pay this invoice as if it were a separate contract.
Article 9 Retention of title
9.1 The ownership of all Products delivered by Duif is expressly reserved by Duif until full payment has taken place for all its claims - including any interest and costs due - pursuant to all Agreements to supply Products and the performance of the accompanying work. The Buyer may only have the Products at its disposal subject to the retention of title in the context of its normal business operations. As long as the ownership has not been transferred, the Buyer may not pledge the Products delivered or provide them as security in any other manner. If third parties attach or wish to attach these Products or wish to levy execution against these Products in any other manner, the Buyer must inform Duif of this immediately.
9.2 The Buyer undertakes to keep separate the Products to which the retention of title is attached and make them available to Duif immediately on request and, if this situation arises, states that it will provide an irrevocable authorisation to Duif or the person(s) to be designated by Duif to access the place at which those Products are located in order to retake those Products and to store them in warehouses at the discretion of Duif.
9.3 In accordance with the provisions of Article 9.1, Duif will provide the Buyer with the ownership of the goods referred to when the Buyer has complied with all its obligations. To ensure payment of everything the Buyer owes at any moment, Duif will have a right of retention and right of pledge on all goods of the Buyer that Duif has or will have in its custody at any time, inter alia in accordance with the provisions of Article 9.2.
9.4 The Products are always subject to property-law rules with regard to the retention of title of the country in which they are located. If this is possible for the law in question, the following will apply in addition to the provisions under paragraphs 1 through 3:
a) In the case of a breach of contract by the Buyer, Duif will have the right to take the delivered Products, as well as the accompanying packaging and transport materials, and to make use of them as it sees fit. If prescribed by law, this implies the dissolution of the agreement in question.
b) If the Buyer sells the Products in the ordinary course of its business, it shall transfer all claims that it comes to have against a third party through the sale. Duif shall be subrogated to all rights which the Buyer may have against its purchaser, will accept this transfer, and retains the right to collect the claim itself as soon as the Buyer does not correctly comply with its payment obligation or, in so far as that is necessary, is in default.
c) The Buyer has the right to process the Products in the ordinary course of its business, whether or not together with Products that do not come from Duif. In the proportion to which Duif's Products form part of the created Products, Duif will acquire the ownership or co-ownership of the new Products, whereby the Buyer states that it will transfer such Products to Duif and which Duif accepts.
d) If it is prescribed by law that Duif must waive part of the stipulated securities on demand in cases in which these exceed the value of the outstanding claims by a certain percentage, Duif will comply with this as soon as the Buyer makes such a request and this is evident from Duif's records.
Article 10 Applicable law
10.1 All offers and agreements concluded with Duif and all obligations deriving from such offers and agreements are exclusively governed by Dutch law.
10.2 The applicability of the Uniform Sales Acts and the Vienna Sales Convention is expressly excluded.
Article 11 Jurisdiction
11.1 The competent court within the district of Duif's place of business will take cognisance of all disputes which may arise between the parties, unless Duif prefers to submit the dispute to the competent court in the Buyer's place of business, and the Buyer shall submit to the jurisdiction of such court.
11.2 The choice of the Dutch court in Article 11.1 does not affect Duif's authority to apply to the court that would have been competent in the absence of a choice of forum.
Article 12 Language
These General Terms and Conditions are a translation of the original in the Dutch language. In case of discrepancies or ambiguity, the Dutch language version is binding.