General Terms and Conditions of Sale and Delivery of Endura Roses Ltd.
Article 1 Definitions
Endura Roses: Endura Roses, a private company with limited liability.
Buyer: any counterparty of Endura Roses;
Products: all goods delivered or to be delivered by Endura in the performance of an Agreement and all Services;
Services: all work (in any shape and under any name) that Endura 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 Endura Roses.
2.2 Deviations from or additions to these terms and conditions of sale and delivery require the express written permission of Endura. 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 Endura, 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 Endura are without any obligation. All examples, images, models and accompanying specifications of Products that are sent along with an offer from Endura, shown by Endura Roses or included on Endura Roses’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 Endura Roses (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 Endura Roses 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 Endura Roses 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 Endura Roses, this acceptance will be considered by Endura Roses to be an invitation to make an offer. In that case, Endura Roses 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 Endura Roses or, if this is earlier, until Endura Roses has started the implementation of the Buyer’s order.
3.5 Endura Roses 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 Endura Roses 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 And are exclusive of packaging costs and shipping costs, exclusive of loading and unloading charges and exclusive of value added tax.
4.2 Endura Roses’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, Endura Roses 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, Endura Roses 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
4.4 Payment must always take place upon ordering, or, if the Buyer has sufficient credit facility with Endura Roses, within thirty (30) days after the invoice date, unless otherwise expressly agreed in writing.
4.5 In the case of a late payment, Endura Roses 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.
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), Endura Roses 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, Endura Roses will deliver the Products in accordance with the delivery condition (Endura Roses warehouse) (Incoterms 2010).
5.2 If Endura Roses arranges the transport at the Buyer’s request, Endura Roses will only do this on behalf of the Buyer and for the Buyer’s account and risk. Endura Roses 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, Endura Roses is entirely free in its choice.
5.3 Endura Roses may decide to arrange for the transport of the Products to the Buyer for orders exceeding a value to be determined by Endura Roses. If Endura Roses proceeds to do so, this will be considered to be a request of the Buyer to Endura Roses 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 Endura Roses 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 Endura Roses that it has the required permits for the import and transit of Products bought by the Buyer, and the Buyer indemnifies Endura Roses 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 Endura Roses are without obligation and can never be considered deadlines.
5.8 Endura Roses 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 Endura Roses 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 Endura Roses. This will only be different in cases of wilful default or gross negligence of Endura Roses 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 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, unless otherwise agreed in writing.
6.2 If the Buyer for any reason whatsoever does not accept the Products offered by Endura Roses 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 Endura Roses, Endura Roses will be authorised to store the Products at a site chosen by Endura Roses for the account and risk of the Buyer. Endura Roses 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 person 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 Proforma, 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 Endura Roses 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 Endura Roses 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 Endura Roses in time or that have been submitted incorrectly do not have legal effect and release Endura Roses 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, Endura Roses 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 Endura Roses’s website, The Buyer will bear the risk of incorrect and/or unauthorised use of this log-in code.
8.2 Endura Roses 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 Endura Roses is not liable for any loss as a result of (temporary) unavailability of Endura Roses’s website or webshop.
8.4 Moreover, Endura Roses 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. Endura Roses 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, Endura Roses does not accept liability for loss as a result of expiry of delivery periods, nor for consequential loss or loss or profits.
8.8 Endura Roses 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 Endura Roses 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 Endura Roses with sufficient security for the consequences of possible non-discharge of the aforementioned 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 Endura Roses or its managing employees.
8.12 The Buyer undertakes to indemnify Endura Roses against claims of third parties for whatever reason, relating to Products delivered by Endura Roses, particularly by reason of personal injury or death.
8.13 In the case of force majeure (not being a breach attributable to Endura Roses in the performance of its obligations), Endura Roses’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 Endura Roses’s business or that of the third parties who are directly or indirectly involved in supplying Endura Roses 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 Endura Roses’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, Endura Roses 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 Endura Roses 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 Endura Roses is expressly reserved by Endura Roses 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 Endura Roses 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 Endura Roses immediately on request and, if this situation arises, states that it will provide an irrevocable authorisation to Endura Roses or the person(s) to be designated by Endura Roses 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 Endura Roses.
9.3 In accordance with the provisions of Article 9.1, Endura Roses 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, Endura Roses will have a right of retention and right of pledge on all goods of the Buyer that Endura Roses 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, Endura Roses 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. Endura Roses 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 Endura Roses. In the proportion to which Endura Roses’s Products form part of the created Products, Endura Roses will acquire the ownership or co-ownership of the new Products, whereby the Buyer
states that it will transfer such Products to Endura Roses and which Endura Roses accepts.
- d)If it is prescribed by law that Endura Roses 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, Endura Roses will comply with this as soon as the Buyer makes such a request and this is evident from Endura Roses’s records.
Article 10 Applicable law
10.1 All offers and agreements concluded with Endura Roses 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 Endura Roses’s place of business will take cognisance of all disputes which may arise between the parties, unless Endura Roses 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.
CHANGES TO PRODUCTS, PRICES & TERMS
ABOUT ENDURA ROSES PRODUCTS
All of ENDURA ROSES products are made of 100% natural and real preserved flowers and herbs. Our preserved flowers can last for years with proper care. We do not sell products that contain fresh flowers, silk flowers and artificial flowers. We have made every effort to display as accurately as possible the colors of our products that appear on the site. We cannot guarantee that your computer monitor’s display of any color will be accurate.