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General terms and conditions of sales and delivery for Yaviva

Article 1 GENERAL

  1. These terms and conditions apply with the exclusion of terms and conditions to the contrary to the delivery of all goods and/or services of any kind from Yaviva, choosing residence in (3709JA) Zeist, at Kwekerijweg 2b, hereinafter referred to as “the seller”. Deviations from these terms and conditions must only be agreed in writing with the seller.
  1. In these terms and conditions, "buyer” means any (legal) person, other than consumers, who has concluded or wishes to conclude an agreement with the seller and, in addition to this, that party's representative(s), agent(s), assignee(s) and heirs.
  1. For the purposes of these terms and conditions, "goods”/"the delivered goods” means all goods in the broadest sense of the word as well as services that are delivered by the seller to the buyer.

Article 2 QUOTATIONS

  1. All offers from the seller are without obligation, both in terms of prices and quantities as well as the time of delivery of the goods, unless agreed otherwise in writing. Prices quoted exclude VAT.
  1. Binding agreements are only concluded by written acceptance or confirmation, as applies, of the order by the seller or if the order from the other party has actually been fulfilled. The order confirmation is deemed to accurately and completely reflect the order, subject to written notice to the contrary from the other party before the actual delivery.
  1. Any additional agreements or changes made later, as well as agreements or commitments by the seller's staff, only bind the seller if they are confirmed in writing by the seller.
  1. Agreements with subordinate employees of the seller do not bind the latter insofar as these have not been confirmed by the seller in writing. Subordinate personnel, in this context, are considered to include all employees without power of procuration.
  1. The seller is entitled to demand security or full or partial advance payment from the client with regard to the fulfilment of the entire payment obligation before further execution of the agreement.
  1. The seller reserves the right to refuse orders and/or assignments without giving a reason.
  1. The seller is not liable for errors and deviations in price, images, drawings and statements of numbers, sizes and weights in overviews and in (non-binding) quotations and/or order confirmations.

Article 3 FREIGHT, IMPORT DUTIES, LEVIES AND TAXES

  1. All sales of items not in inventory take place under the explicit conditions that the price/prices are based on the cost factors that apply at the time of concluding the (purchase) agreement, such as: export duties in the area of origin, freight and insurance, unloading costs, import duties, levies and taxes.
  1. Any advantageous or disadvantageous differences at the time of disembarkation/arrival/delivery will be credited or charged to the buyer.

Article 4 DELIVERY AND RISK

  1. Within the Netherlands, delivery takes place free of charge for shipments from €200.00 net excluding VAT. For shipments below this amount, the seller will charge for freight and handling.
  1. For franco deliveries, the goods travel at the expense and risk of the buyer. The mode of transport is at the discretion of the seller.
  1. The risk of molestation is always borne by the buyer.
  1. If it has been agreed that the goods will be delivered via direct delivery from abroad, the risk of improper (both quantitatively and qualitatively), not timely and non-arrival, as well as the risk of and during the delivery is entirely at the expense of the buyer.
  1. If the relevant unloader or carrier or the person from whom and/or the person with whose mediation the goods are purchased abroad fails to fulfil the applicable obligations in whole or in part, after proper summons, for whatever reason or due to whatever cause, the seller has the right to cancel the agreement with the buyer.
  1. Cancellation on the aforementioned grounds means that the buyer will not be able to claim damage compensation from the seller.
  1. For franco delivery, the seller is obliged to transport the goods to where the vehicle can reach a terrain that is (made) properly drivable. The buyer is obliged to accept and immediately unload the goods there. If the buyer fails to do so, the resulting costs shall be borne by the buyer.

Article 5 DELIVERY PERIODS

  1. The delivery period is determined on the condition that the circumstances remain the same as at the time of the conclusion of the agreement and expressly does not create a deadline.
  1. In the event of a delay in delivery due to changed circumstances, the delivery period will be extended by the duration of this delay. The seller will inform the other party in good time of any delay. Delayed delivery does not give the other party the right to dissolve the agreement nor to claim damage compensation.
  1. Neither is the buyer entitled to refuse to accept the delivered goods and/or to refuse to pay the agreed purchase price if the agreed delivery period is exceeded. If the buyer nevertheless refuses to accept the delivered goods, the seller is entitled to store the delivered goods elsewhere at the buyer's expense, without prejudice to the obligation of payment of the agreed purchase price.
  1. The seller reserves the right to deliver the goods earlier than the latest delivery date.

Article 6 ACCEPTANCE AND CLAIMS

  1. The buyer is responsible for checking the nature, quality and condition of the delivered goods. If no claim is made immediately after receipt, the information as stated on the waybills, delivery notes or such documents shall be recognized as correct.
  1. In order to be valid, claims related to defects or damage must be noted by the buyer on the proof of receipt. Damage must also be documented by the buyer with visual material, which images will be provided to the seller by the buyer.
  1. Claims related to quality or deviations from the specifications will only be handled by the seller if they have reached the seller promptly, within five days after delivery of the delivered goods, in writing, with a precise statement of the nature and grounds of the complaints and provision of the visual material.
  1. Under penalty of forfeiture of rights, claims related to invoices must also be submitted in writing within eight days of the date of despatch of the invoices.
  1. No claims will be on opened batches or those that have been processed in whole or in part.
  1. Claims do not give the buyer the right to suspend payment, while off-set is expressly excluded.
  1. If a claim is justified, the seller will, at the seller's option, either pay fair damage compensation not to exceed the invoice value of the claimed part of the delivery, or replace the delivered goods after return of the originally delivered goods. The seller is not obliged to further compensate for damage. Immaterial damage and damage suffered by third parties and/or damage other than direct property damage will never be compensated.
  1. In order to be valid, any differences between the actual quantities of delivered goods or the number of packages and what has been agreed between the parties must be noted by the buyer on the proof of receipt. The buyer must inform the seller of this within five days after receipt of the delivery.
  1. If goods are missing from the delivery, and this is attributable to the seller, the seller reserves the right to deliver the missing part or cancel the remaining order within two weeks after receipt of notification from the buyer. The seller is not liable for damage that the buyer suffers as a result of deviations in the scope of the delivery. Insofar as deliveries have been invoiced but not delivered, the buyer will receive a credit note.

Article 7 QUALITY, LIABILITY

  1. Unless explicitly stipulated otherwise for the sale, normal quality will be delivered. The actual shelf life of the delivered goods can never be guaranteed. The seller is not liable for the consequences of the delivery of goods that infringe on intellectual property of third parties outside the seller's knowledge, other than the maximum value of the goods in question.
  1. Except as expressly agreed in writing warranty provisions or warranty certificates provided by the seller, the seller does not grant any warranties other than the warranty received from its suppliers/manufacturers and which warranties are transferable.
  1. The seller accepts liability for damage suffered by the buyer that is the result of a shortcoming attributable to the seller in the fulfilment of the agreement, if and insofar as this liability is covered by the seller's insurance, up to the amount of the payment made by that insurance. The seller is not liable for damage caused by intent or gross negligence on the part of subordinates of the seller and/or third parties engaged by the seller. The seller is never liable for consequential damage, as a result of total or partial non-fulfilment of the agreement, defect with regard to the method of delivery of defective products, late delivery, defects with regard to transport, unloading, provision of advice etc., except on intent on gross negligence of the seller.
  1. In all cases and on penalty of forfeiture of rights, the period within which claims can be made against the seller for compensation of the damage is limited to a period of one year after the harmful event has occurred.
  1. If the insurer of the seller does not make the payment for any reason, the liability is limited to the invoice amount with a maximum of €1,000.00 (in words: one thousand euros).
  1. Insofar as non-fulfilment by the buyer of its contractual or legal obligations results in the seller being held liable towards third parties, the buyer hereby undertakes to indemnify the seller against all consequences of this liability.
  1. The seller is never liable for damage or injury to the delivered goods or to persons or goods as a result of the unloading of the goods. The buyer is aware that the delivered goods may include fragile materials. The buyer will take this into account when unloading.
  1. The buyer has the right to assess an inspection sample prior to ordering. If the sample has been approved, the buyer has no right to refuse the subsequent delivery if the sample and the delivery match. If the buyer waives inspection of a sample, this is at the risk of the buyer.
  1. The seller is not liable for claims against the buyer by trademark holders of products delivered by the seller on the basis of agreements between this trademark holder and the buyer.

Article 8 FORCE MAJEURE

  1. During force majeure, the delivery and other obligations of the seller are suspended. If the period in which fulfilment of the supplier’s obligations is not possible lasts longer than 6 months, both parties have the right to dissolve the agreement without judicial intervention and without any obligation for damage compensation in that case.
  1. If the seller has already partially fulfilled its obligations at the start of the force majeure, or can only partially fulfil its obligations, it is entitled to invoice the part already delivered or the part that can be delivered separately, and the buyer is obliged to pay this invoice as if it were a separate contract.
  1. Force majeure within the meaning of this article is understood to mean an impediment to performance due to circumstances that were unforeseeable at the time of the conclusion of the agreement and that are not attributable to the seller. This will include: non- or non-timely or improper delivery by the seller as a result of environmental disasters, war, work strike, excessive absenteeism of personnel or shortages of personnel, weather conditions, computer faults, malfunctions or defects in information systems of the seller or the seller's suppliers, lack of or withdrawal of transport options and import and export restrictions or closure of national borders.

Article 9 RETURN SHIPMENTS

  1. Return shipments are hereby not accepted by the seller unless the seller has given prior written permission.
  1. If the seller agrees to the return of delivered goods, the return shipment must always be done franco by the buyer with a statement of the invoice number(s) and the date of delivery.
  1. After receipt of the return shipment in accordance with paragraphs 1 and 2 of this article, the buyer will be credited with a deduction of at least 10% of the invoice value, in order to cover, among other things, administrative and warehouse costs.
  1. The receipt of goods returned by the buyer never implies any recognition on the part of the seller of any fault or shortcoming in the fulfilment asserted by the buyer.
  1. If goods are returned in accordance with Article 6 on the basis of a well-founded claim, the seller shall arrange for transport.
  1. It is not possible to return goods if there is an incorrect order by the buyer or if there is an order for goods that do not meet the buyer's expectation on receipt but do correspond to the order. This risk is borne by the buyer.

Article 10 RETENTION OF TITLE

  1. All goods delivered by the seller remain the property of the seller, until the time of full compliance with all the obligations of the buyer vis-à-vis the seller for whatever reason. This in any case includes the consideration with regard to goods delivered and/or to be delivered, the consideration with regard to services provided and/or to be provided by the seller as well as all claims due to non-compliance by the buyer and settlement of current account balances, including interest and costs.
  1. If the buyer fails to fulfil one or more contractual obligations, fails to do so in time or does so improperly, if the buyer files for bankruptcy or (provisional) suspension of payment, is declared bankrupt, transfers his/her company in whole or in part, liquidates or closes down, if the buyer's assets are seized in whole or in part, the buyer is in default and the seller has the authority to consider the agreement as dissolved in whole or in part without any notice of default or judicial intervention being required, irrespective of any further right to claim fulfilment, damage compensation and suspension. In those cases, any claim the seller may have against the buyer is suddenly and immediately due and payable.
  1. As long as the ownership of the goods has not been transferred to the buyer, the buyer may not pledge, transfer ownership of the goods or grant any other right to them to third parties. These provisions are intended to have a property law effect. The buyer is obliged to store the goods delivered under retention of title with the necessary care and as identifiable property of the seller. In the event of sale and/or delivery by the buyer to third parties in the context of the performance of the buyer's normal business, as well as in the event of violation of the above provisions before the payment period has expired, the purchase price, irrespective of any other stipulation to the contrary, shall become immediately due and payable in full.
  1. In the event the seller wishes to exercise the right to retention of title, the seller will be granted access by the buyer to the goods delivered by the seller. To the extent necessary, the buyer irrevocably authorizes the seller to exercise the right of withdrawal.
  1. The costs arising from the exercise of the property rights by the seller are borne by the buyer.

Article 11 PAYMENTS

  1. Unless otherwise agreed, payment must be made in advance, without set-off and in Dutch currency, unless the parties expressly and in writing agree on another currency for effective payment of which the buyer is then obliged. The seller may charge a credit restriction surcharge and/or demand prepayment or other guarantees. The payment term is a strict deadline.
  1. If the buyer fails to pay within the period referred to in paragraph 1 of this article, the default will occur automatically, and the buyer owes the seller a default interest of 1.5% of the invoice amount for each month that the buyer is in default with payment. For the calculation of the interest, part of the month applies as a whole month.
  1. Payment made by the buyer, regardless of the allocation indicated by the seller, always settle all interest and costs owed and then payable invoices that are longest outstanding.
  1. Without prejudice to the foregoing, the buyer owes the seller all costs incurred by the seller to collect the amounts owed to the seller and to insure the seller's rights, including both judicial and extrajudicial collection costs, without prejudice to the seller's authority to demand compensation for damages, costs and interest, which arise for the seller from non-, non-timely or improper fulfilment or dissolution of the agreement concluded between the parties.
  1. These judicial and extrajudicial collection costs also include the collection, agency and settlement costs of lawyers, bailiffs and damage experts.

Article 12 SHORTCOMINGS OF THE BUYER

  1. If the buyer does not fulfil the obligations within three working days after the seller has given notice of default, the seller is entitled to cancel the contract immediately without legal intervention, while retaining any right to damage compensation, without prejudice to the provisions of Article 7.

Article 13 PROVISION OF SERVICES

  1. Without prejudice to the provisions of the preceding articles, the following provisions also apply if the seller provides services as well as providing advice and assistance to or on behalf of the buyer.
  1. The seller will perform the services with due care, where appropriate in accordance with the agreements and procedures recorded in writing with the buyer.
  1. Without prejudice to the provisions of Article 5, the seller will inform the buyer as soon as possible if the timing of the completion of the service will be influenced by a change in the agreement or in the conditions for execution or by force majeure. With regard to service contracts, the seller has an effort obligation to deliver what has been agreed. There is never a results commitment.

Article 14 INTERNATIONAL AGREEMENTS AND DELIVERIES

  1. The Vienna Sales Convention (United Nations Convention on Contracts for the International Sale of Goods) does not apply to agreements with the seller.
  1. The seller is never liable for damages as a result of the transport of international deliveries.

Article 15 BATTLE OF THE FORMS

  1. If the buyer utilizes general terms and conditions (of purchase), they will not be accepted by the seller and these terms and conditions of sale and delivery will prevail.

Article 16 LAPSE

  1. Any legal claim that the buyer has under an agreement concluded with the seller expires one year after its creation.

Article 17 DEROGATION

  1. Derogation from what is stipulated in these general terms and conditions is only possible after explicit and written permission from the seller.

Article 18 CONVERSION

  1. If and to the extent that, on the grounds of reasonableness and fairness or the unreasonably burdensome nature, any provision in these general terms and conditions cannot be invoked, that provision will be interpreted as much as possible with similar meaning in terms of content and scope, such that it can be invoked. The nullity of any provision does not result in the nullity of the general terms and conditions.

Article 19 DISPUTES

  1. All agreements concluded with the seller are governed by Dutch law. All disputes arising from or related to these agreements will be submitted to the competent court of the place of residence or place of establishment of the seller.