Terms of Delivery and Payment

GENERAL TERMS OF BUSINESS STEKBEDRIJF BERGS VERMEERDERINGSTECHNIEK B.V., Geusert 13, 6093 NR HEYTHUYSEN. Submitted to the Roermond Chamber of Commerce on 25 June 2008 File number 130.31.887.

1) GENERAL
a. These general terms apply to all quotations made by Stekbedrijf Bergs Vermeerderingstechniek B.V., to be called SBV, as well as to all purchase and sales agreements made to which SBV has declared these terms applicable, in so far as these terms have not been deviated from explicitly and in writing by either of the parties. By making an agreement with SBV the other party unconditionally accepts the applicability of these terms.
b. These general terms apply, with the exception of all other terms, including the purchase terms of the other party.
c. Deviating terms must be explicitly agreed upon in writing and are considered to be complementary to these terms, in so far as they do not replace these terms.
d. All SBV products are produced in the Netherlands.
e. The terms in question also apply to agreements with SBV for the execution of which SBV must contract third parties.
f. If one or more terms in these general terms should become void entirely or in part, or should become destroyed, the remainder in these general terms remains applicable entirely. SBV and the other party will in such case enter negotiations with the aim of agreeing new terms in replacement of the void or destroyed terms, where the aim and content of the original terms will be taken into account as fully as possible.
g. If SBV does not demand strict adherence to these terms in every case, this does not mean that the terms are not applicable, or that SBV would in any way lose the right to demand strict adherence to the terms in other cases.
h. Any deviations from these terms are only valid if these were agreed upon explicitly in writing and only apply to the specific agreement to which the deviations refer.
i. The applicability of any purchase terms or other terms of the other party are explicitly denied.
j. If there is uncertainty as to the meaning of one or more terms in these general terms, the explanation should be ‘in the spirit’ of these terms.
k. If a situation arises between the parties that are not covered by these general terms, this situation should be judged in the spirit of these general terms.

2) QUOTATIONS / AGREEMENT
a. The quotations and offers made by SBV are without obligation and revocable, unless the quotation includes a time limit for acceptance. If no time limit for acceptance is included, no rights can be claimed from the quotation or offer if the product to which the quotation or offer is applicable is no longer available. A quotation or offer is valid for a maximum of 14 days.
b. An agreement is made by signing the quotations provided by SBV or by confirmation of an order by the other party.
c. The agreement comprises these general terms together with any other agreements made by letter, fax or email.
d. Further, all quotations and offers are made on the basis of the details provided by the other party. If these details are found to be incorrect or incomplete, the other party cannot claim any rights from an (accepted) quotation or offer from SBV.
e. SBV cannot be held accountable for its quotations or offers if the other party can reasonably see that the quotations or offers, or a part thereof, contain an apparent mistake or typo.
f. The prices mentioned in a quotation or offer exclude VAT and other government fees, any costs to be made with regard to the agreement as described in article 3, including travel, stay, delivery and administration costs, unless indicated otherwise.
g. If the acceptance (either in its main points or secondary points) deviates from the offer made in the quotation or offer, then SBV is not bound by it. In such case the agreement will not be made in accordance with this deviating acceptance, unless indicated otherwise by SBV.
h. A compound quotation does not require SBV to deliver part of the order against the corresponding part of the quoted price. Offers or quotations do not automatically apply to future orders.

3) PRICES
a. The other party is required to pay the agreed price to SBV. The price and any cost estimates are excluding VAT and additional costs including: transport costs, insurance, packing, quality check and/or phytosanitary check-up, import duties, government and other public authority fees, as well as legal nursery and other compensations, unless agreed in writing. If no price is agreed, the price current at SBV at the moment of delivery will be applicable.
b. If SBV deems it necessary, it has the right to request a reasonable advance payment from the other party. SBV has the right to delay the commencement of the execution of the agreement until the advance payment is made or sufficient guarantees for this have been put in place.
c. SBV has the right at all times to increase the price without the other party having the right to terminate the agreement for this reason, if the price increase is on the authority or requirement resulting from law or regulations, or is caused by the increase of, for example, wages, or on other grounds that could not reasonably have been foreseen at the time of the agreement.
d. The other party is required to compensate for the reasonable costs made by SBV in the execution of the work operations.
e. Unless otherwise indicated the prices are also:
• from the company SBV;
• noted in Euros or other foreign currency; in the latter case, any differences in exchange rate are at the risk of the other party. SBV has the right to charge these to the other party.

4) POSTPONEMENT AND DISSOLUTION
a. SBV and the other party have the right at all times to terminate the agreement with immediate effect if the other party or SBV:
• is declared bankrupt, or has requested bankruptcy;
• has been granted suspension of payment or if this has been requested;
• ceases business activity.
b. SBV has the right to postpone the fulfilment of the requirements or to terminate the agreement if:
• the other party does not fulfil the requirements of the agreement, or does not do so in full, or in time.
• after the signing of the agreement, circumstances become known to SBV which give SBV good grounds to suspect that the other party will not fulfil the requirements;
• the other party has been requested, at the signing of the agreement, to provide guarantees for the fulfilment of its requirements under the agreement and this guarantee is not provided or is insufficient;
• due to delays caused by the other party SBV can no longer be expected to fulfil the agreement under the terms originally agreed.
c. In addition, SBV has the right to postpone delivery of products or other items to the other party or third parties, until all claims on the other party have been met.
d. If the agreement is dissolved, SBV's claims on the other party are enforceable immediately. If SBV postpones the fulfilment of the requirements, SBV retains its claims by law and from the agreement.

5) DELIVERY
a. SBV is required to deliver the agreed quantity to the agreed quality standards, unless market disruption and/or circumstances beyond their control necessitate a reduction in quantity and/or diminished quality.
b. SBV is required to immediately notify the other party of this and is from then on justified in delivering a reduced quantity and/or diminished quality.
c. Unless otherwise agreed, the location of delivery is the SBV company site.
d. If the other party has not collected the products in question at the agreed time and place and because of this the products need to be stored at the SBV site for a longer time period, the associated costs will be charged to the other party. The risk of diminished quality resulting from longer storage belongs entirely to the other party.
e. If after a certain time period, which, considering the product type, can be called reasonable, the other party has not collected the products and the risk of diminishing quality and/or the decay of the products leaves no other choice, the order is considered terminated by the other party. In that case the other party is required to pay damages for the costs incurred by SBV resulting from this failure to collect.
f. At delivery, the risk of the products in question and everything connected therewith, is passed to the other party.

6) CANCELLATION
a. If the other party cancels a placed order entirely or in part, other than according to article 5e, then SBV claims the right to charge the other party, in its entirety or in part, for the items already ordered or prepared in connection with the order.
b. Further, the other party must provide a rationale for its decision to cancel in writing and send this to SBV by recorded delivery. This written statement must include the circumstances which give rise to the cancellation of the agreement.

7) CIRCUMSTANCES BEYOND SBV’S CONTROL
a. SBV is not required to fulfil any obligations to the other party if it is hindered by circumstances not attributable to a fault on its part, and incurs costs neither as a result of the law, a legal decree nor of current business practice.
b. Under circumstances beyond its control are understood, beside what is meant by this in law and in case law, every circumstance that falls outside SBV’s direct control and as a result of which fulfilment of the agreement can no longer be reasonably demanded. In any case, such circumstances include: extreme weather conditions, fire, technical malfunctions, strikes, government actions and the presence of harmful organisms from nature on the one hand and faults in any materials provided by the other party.
c. SBV also has the right to appeal to circumstances beyond its control if the circumstance that prevents the fulfilment of the agreement occurs after the time SBV should have fulfilled its obligations.
d. If delivery cannot take place due to circumstances beyond its control, SBV will duly notify the other party.
e. SBV can postpone the fulfilment of requirements of the agreement for the duration of the circumstances that are beyond its control. SBV is never liable for any damage the other party may suffer as a result of this postponement.
f. If this period exceeds three months, both parties are entitled to terminate the agreement by means of a letter sent by recorded delivery, without the requirement of paying damages to the other party, notwithstanding the term under g. of this article.
g. In so far as SBV has partially fulfilled, or is about to fulfil, its requirements of the agreement at the moment the circumstances beyond its control take effect, and the part fulfilled or to be fulfilled has independent value, SBV reserves the right to invoice the fulfilled part or the part to be fulfilled separately. The other party is required to pay this invoice as if a separate agreement were in effect.

8) TRANSPORT/DELIVERY
a. Unless agreed otherwise, the mode of transport/delivery is determined by SBV according to best trade practice.
b. Unless agreed otherwise, the transport/delivery is paid by the other party and the other party accepts all liability, including fault/neglect on the part of the transport company.
c. Specific wishes on the part of the other party regarding the transport/delivery are only executed if the other party has declared to pay for the additional costs.

9) PACKING
a. Carts, wheeled containers and standard pallets must be returned immediately, unless agreed otherwise. To use these for purposes other than those relating to the transport/delivery, or to supply them to third parties, is not allowed.
b. In case of damage to, or loss of, standard packaging, carts, wheeled containers, pallets etc. the other party is required to pay the repair or replacement costs to SBV, as well as any extra rental costs arising from the late return.

10) CLAIMS
a. The other party will check, or will have a third party check, the quantity of the delivered batch at receipt and report any shortages to SBV immediately after receipt of the batch.
b. Claims regarding visible defects detected at receipt should be made in writing within 5 working days of the delivery. If no claim is received within five working days of the delivery, it will be assumed that there was no visible defect to the product at delivery.
c. Claims regarding defects not visible at delivery must be submitted in writing as soon as the defect has been detected, or when it can reasonably be assumed to have been detected. If a claim is not made within five days the other party loses all rights to damages.
d. If a claim is not made in writing within two months after delivery it is assumed that the product delivered to the other party was not defective.
e. In all cases the date of the post stamp is taken as the delivery date.


11) LIABILITY
a. SBV will perform its work to the best of its ability and will take the care that can be expected from SBV assuming best practice.
b. SBV is not liable for any costs to the other party resulting from any damage to cultivation material delivered to SBV, or from the invisible presence of harmful organisms from nature, unless the other party shows the cultivation material to have been defective at the moment of delivery and that this defect is the result of intent and/or gross neglect on the part of SBV.
c. If a mistake is made as a result of the other party providing incorrect or incomplete information, SBV is not liable for damage resulting from this.
d. SBV's liability is limited to the invoice amount of the delivered products at all times. Further, SBV’s total liability is limited to the amount that is paid out under the company liability insurance in the case in question, to which is added the amount of the own liability.
e. SBV is only liable for paying damages not mentioned in this article if and in so far as the other party proves intent or gross neglect on the part of the senior staff of SBV.
f. SBV can settle the damages with invoices unpaid by the other party and the interest and costs resulting from it.
g. SBV is not liable for persons hired on the recommendation of the other party.
h. SBV is only liable for direct damage. SBV is not liable for other direct, indirect and/or resulting damage (including, but not limited to, loss of profit, business stagnation costs, loss of relations, resulting from delays among other things, data loss, exceedance of a delivery term and/or detected defects) than direct pecuniary damage suffered by the other party.
i. In so far as the other party and SBV have agreed delivery terms in the agreement, these terms are indicative, unless explicitly agreed otherwise in writing. If these are exceeded, this will never result in a shortcoming of SBV's fulfilment of its obligations and therefore not give the other party the right to demand damages and/or termination of the agreement. If the term is exceeded, the other party must thence notify SBV in writing. SBV must be given a reasonable term to perform the actions that are outstanding under the agreement.
j. The other party is required to report damage within 14 days of the occurrence of the damage. If this is not reported, or reported late, SBV is in no way required to compensate for the damage suffered by the other party.
k. The other party safeguards SBV against all liability that third parties claim and execute against SBV for damages, incurred costs, loss of profit and other expenses that are in any way connected to and/or resulting from the execution of SBV of the agreement.
l. If the other party provides and funds the starting material, SBV is required to handle this according to best trade practice. In case of circumstances beyond its control or failure of the growth, despite good care, SBV is never liable to payment of any damages.
m. SBV does not accept liability for the re-growth or blossoming of the delivered plants.

12) PAYMENT
a. Payment must be made within 14 days of the invoice date, using a method indicated by SBV.
b. If the other party fails to make the payment in time and/or to pay in full, the other party is in default by law. The other party is then indebted to 1.5% interest per month or part thereof, unless the legally determined interest is higher, in which case the legally determined interest must be paid. The interest on the outstanding amount will be calculated from the moment the other party is in default until the moment the entire outstanding amount is settled.
c. If SBV needs to send reminder notices to the other party, the other party is indebted to pay €15.00 administration costs per reminder notice.
d. The other party never has the right to settle the amount owed to SBV by deducting other incurred costs. Complaints against the invoice amount do not postpone the requirement to pay. The other party, which cannot call on paragraph 6.5.3 (articles 231 to 247 in book 6 of the Dutch Civil Code), also does not have the right to postpone payment of an invoice for any other reason.
e. If the other party is in default with regard to the (timely) fulfilment of its obligations, all reasonable costs for enforcing fulfilment outside of the law are to be paid for by the other party. The extralegal costs are calculated on the basis of what is common Dutch recovery practice, which at the moment is the calculation method according to Rapport Voorwerk II. If, however, SBV has made higher recovery costs that were reasonably necessary, the actual costs are liable for compensation. Any legal and implementation costs will also be claimed from the other party. The other party is also liable to pay interest on the due recovery costs.
f. SBV has the right to make the other party’s payments pay towards the costs in the first instance, next for the additional interest and finally for the main sum and its accompanying interest. SBV can, without perpetrating neglect, refuse an offer of payment if the other party indicates that the payment should count towards due amounts in a different order. SBV has the right to refuse complete settlement of the main sum if the additional and main interest and the recovery costs are not settled at the same time.

13) ADDITIONAL EXPORT TERMS
a. The trader/exporter indicates the place of residence of the final grower and the date of the planned delivery on the delivery slip so that SBV can take the necessary phytosanitary measures.
b. The driver must fill out a CMR form (way bill) including the date and time of the collection of plants from SBV for all deliveries.
c. If SBV arranges the transport to the delivery address indicated by the trader/exporter all liability lies with SBV with a maximum of 24 hours. This is followed by an assessment time of 12 hours, which means that SBV accepts claims up to 36 hours after the moment of collection.
d. If the trader/exporter plans to ship these plants further and has indicated this on the delivery slip as indicated above, SBV expects a fax or message from the trader/exporter if the delivery is not in order on arrival at the allocation site. Without this notification SBV takes no responsibility.
e. Assuming that further export to whatever country does not take longer than 48 hours and that the final grower assesses the plants within 12 hours, SBV accepts complaints from the final growers within the following time span: 24 hours national transport, 12 hours assessment time, + 48 hours transport totals 84 hours after delivery to the nursery according to the CMR form mentioned under point 2. Sundays and holidays are included in the calculation.

14) RESERVATION OF PROPERTY
a. All items delivered by SBV with respect to the agreement remain the property of SBV until the due amounts are settled in full by the other party.
b. SBV has the right to repossess the products if the other party does not fulfil its payment obligations. The other party will allow SBV access to the site where the items are located.
c. If SBV cannot exercise its right of property because the delivered items have been mixed, distorted or acceded in any way, the other party must pledge the newly formed items to SBV.

15) DISPUTES/APPLICABLE LEGISLATION
a. Dutch law is exclusively applicable to all agreements between the other party and SBV, unless agreed otherwise at export.
b. The above stipulation is also applicable if an agreement is executed entirely or in part abroad or if the party legally involved has residence there. Any applicability of the Vienna Sales Convention is excluded.
c. All disputes relating to or resulting from the interpretation and/or fulfilment of the order agreement, with the exception of disputes that are the exclusive domain of the subdistrict court, are ruled by the District Court of Roermond, without detriment to the above stipulations.

16) PLACE OF DEPOSIT AND CHANGES TO TERMS
a. These terms are lodged with the Roermond Chamber of Commerce under number 130.31.887 and will be posted by SBV free of charge on request.
b. At any time, the version last lodged is applicable, i.e. the version as it stood at the time the legal relation with SBV was initiated.
c. In all cases, the Dutch version of the text with the general terms will determine its interpretation.