Terms and Conditions
General Terms and Conditions of Sale and Delivery for the Seed and Planting Materials Sector
ABZ Seeds BV
1619 PR Andijk
Andijk, 11 June 2010
The General Terms and Conditions of Sale and Delivery for the Seed Trade and Planting Materials Sector as applied by the Vegetable and Flower Seed Section of the Plantum NL, Gouda.
Article 1 Applicability of these General Terms and Conditions
1. These General Terms and Conditions apply to all offers and all agreements between ABZ Seeds BV, hereinafter to be called 'Seller', and a buyer, as designated by the signature of any buyer under a sales contract, or document of legal value substituting such sales contract, hereinafter to be called 'Buyer', except in so far as when expressly otherwise provided in writing.
2. The International Seed Trade Federation Rules and Usage for the Trade in Seeds for Sowing Purposes apply to all agreements with and / or offers for sale addressed to buyers located outside the Seller's country, except in so far as case otherwise provided below.
3. The applicability of any General Terms and Conditions of Buyer is expressly rejected.
Article 2 Offers and Prices
1. The offers made by Seller are without commitment. An offer without commitment may be withdrawn up to 3 working days after receipt of its acceptance. The prices specified in an offer are net prices exclusive of VAT.
2. Seller reserves the right to change its prices periodically. Each new price listing will invalidate the preceding one with regard to all orders placed after that new price listing.
Article 3 Harvesting and Processing Reservation
1. All deliveries are subject to the customary harvesting and processing reservation. If Seller invokes the harvesting or processing reservation, Seller is not obliged to supply, but will, if possible, try to supply pro rata the quantity ordered or provide equivalent alternatives.
2. Buyer is not entitled to damages if Seller invokes this reservation.
Article 4 Ordering and Delivery
1. If the quantity ordered in any order differs from the standard quantity applied by Seller or a multiple thereof, Seller is free to deliver the nearest higher quantity.
2. Seller will always act to the best of his ability in fulfilling his obligation to deliver.
3. Sound fulfilment of Seller's obligation to deliver also includes delivery with a minor difference in size, packaging, number or weight.
4. Seller is permitted to deliver sold goods in parts. If the goods are delivered in parts, Seller has the right to invoice each part separately.
5. Buyer is obliged to specify in writing, upon placing his order or at Seller's first request, what data, specifications and documents are required pursuant to the law and regulations of the country in which the delivery is made, such as those relating to:
· fytosanitary requirements
· international certificates; and
· other import documents or import statements
6. The Incoterms applicable at the date of conclusion of the agreement will apply to the agreement.
7. Delivery will be ex works (EXW) of Seller.
8. Seller undertakes to deliver within a reasonable period, in accordance with the sowing or planting season after the purchase agreement was concluded.
9. An agreed delivery period will not be ultimately binding. In the event of late delivery, Buyer must therefore give Seller notice of default in writing and grant him a reasonable period in which to fulfil the agreement.
10. On purchase orders with a value less than EUR 5.000,- Seller is entitled to charge for packing costs.
Article 5 Retention of Title
1. Title to the goods delivered by Seller will remain vested in Seller until Buyer has paid the purchase price. This retention of title also applies to any claims that Seller may acquire against Buyer due to Buyer's failure to fulfil one of its obligations towards Seller.
2. Goods delivered by Seller to which the retention of title pursuant to paragraph 1 applies may be resold or used only in the normal course of business. If they are resold, Buyer is obliged to demand a retention of title from his buyers.
3. Buyer is not permitted to mortgage the goods or to create any other right with regard to the goods.
Article 6 Payment
1. Payment must be received by Seller within 14 days after the invoice date. At the end of that period, Buyer will be in default; Buyer will owe interest at a rate of 1 % per month on the outstanding amount from the date of default.
2. In case of winding-up, bankrupcy or suspension of payments, Buyer's payment obligations will be due immediately and Seller will be entitled to suspend further performance of the agreement or to dissolve the agreement, all of this without prejudice to Seller's right to claim damages.
3. If payment in instalments has been agreed, the entire remaining amount will be due immediately without notice of default being required. The provisions of the last sentence of paragraph 1 apply accordingly.
4. Buyer is not allowed to apply any financial settlements nor other deductions on the purchase price.
Article 7 Collection Costs
In case Buyer fails to perform one or more of his obligations, all the costs of obtaining payment in and out of court will be for Buyer's account.
Article 8 Liability
1. Seller is not liable for any damage resulting from a shortcoming in the goods and services rendered, except in case of false intent and / or gross negligence on the part of Seller and / or his employees.
2. Buyer is required to limit as much as possible the damage with regard to the goods and services about which he files a complaint towards Seller.
3. If Seller is liable on the basis of one or more terms or conditions, such liability will be limited to the invoice value of the goods and services; Seller will in no event be liable for any form of consequential damage.
Article 9. Use and Guarantee
1. Seller guarantees that the goods and services rendered will comply to the best of its ability with the relevant product specifications. However, the product specifications will not apply as a guarantee. If the goods delivered do not comply with the product specifications, Buyer will be informed. Seller furthermore does not guarantee that the goods and services rendered will comply with Buyer's intended purpose.
2. In case Seller has specified a germination capacity, such figure is based only on reproducible laboratory tests. No direct relationship may be assumed between the specified germination capacity and the emergence of the seed at the buyer. This specified germination capacity merely indicates the germination capacity at the time when and in the circumstances in which the test was performed. Emergence depends, among other things, on the location, cultivation measures and climate conditions at the Buyer.
3. Any and all guarantees on the part of Seller will be void if Buyer processes the goods or has them processed, repackages the goods or has them repackaged, or uses the goods incorrectly.
Article 10. Defects and Complaint Periods
1. Buyer must inspect the goods purchased upon delivery, or as soon as possible after delivery. In doing so Buyer must check whether the goods delivered comply with the agreement, ie.:
· whether the quantity of the goods delivered corresponds with the agreement
· whether the correct goods have been delivered
· whether the goods delivered meet the agreed quality requirements or - if none were agreed - the requirements that may be stipulated for normal use and / or trading purposes.
2. If visible defects or deficiencies are established, Buyer must inform Seller accordingly in writing within 6 working days after delivery, specifying the lot, delivery note and/or invoice details.
3. Buyer must report any invisible defects to Seller in writing within 10 working days after discovery, specifying the lot, delivery note and/or invoice details.
4. Complaints must be described in such a manner that Seller or a third party can verify them. For that purpose Buyer must also keep records with regard to the use of the goods and, in the event of resale of the goods, with regard to its buyers. If Buyer does not file a complaint within the foresaid period, the complaint will not be dealt with and his rights will expire.
5. In the event of a persistent dispute between the parties concerning the germination capacity, varietal trueness-to-type, varietal purity or technical purity, a (re)inspection may be performed at the request of either party by the NAK-Tuinbouw, having its registered office in Roelofarendsveen, the Netherlands, for the account of the unsuccessful party. The (re)inspection will be performed on the basis of an approved sample. The outcome of this (re)inspection will be binding on both parties, without prejudice to the parties' right to submit disputes on the consequences of this outcome to the institutes referred to in Article 16.
Article 11. Supply of Information
1. Information supplied by Seller in any form whatsoever is without commitment. Descriptions, recommendations and illustrations in brochures and leaflets represent as closely as possible experiences in tests and in practice. However, on the basis of such information Seller accepts under no circumstances any liability for deviating results in the cultivated product. Buyer himself must determine whether the goods are suitable for the intended crop and/or can be used under local conditions.
2. In the information provided by Seller, the term 'immune' means that the variety is not susceptible to a certain disease (immune is an absolute concept); the term 'resistant' refers to the plant's ability to prevent or impede the development of a certain disease or certain forms of that disease; the term 'tolerant' refers the plant's ability to endure a certain disease or harmful environmental factor, with limited harmful effects on growth and production; the term 'susceptible' refers to the plant's inability to impede or prevent the growth or development of a certain disease or harmful environmental factor.
Article 12. Non-propagation condition
The only use of the goods delivered is for the purposes of their intended use, that is the production of a final product. The use for multiplication or propagation for the production of new seed or propagation material is prohibited.
Article 13. Use of trademarks and designations
Buyer is not allowed to use trademarks and designations that are used by Seller to distinguish his products from the products of other legal entities/companies, or use trademarks and designations that are not clearly distinguishable from those of the Seller. Trade in products in the original packaging of Seller with the trademarks and designations placed on them by Seller are excepted from foresaid provision.
Article 14. Force majeure
1. Force majeure is defined as circumstances that prevent the fulfilling the obligation to deliver and that cannot be attributed to Seller. In case and as much as these circumstances make it impossible to perform or complicate performance to an unreasonable extend. Force majeure includes strikes in third party companies, unofficial strikes or political strikes in Seller's company, a general lack of the necessary raw materials and other goods or services required to render the agreed goods and services, unforeseeable delays at sub-suppliers or other third parties on which Seller is dependent, and general transport problems.
2. Seller will inform Buyer as soon as possible if he is unable to deliver or to deliver in time in the event of force majeure.
3. In case force majeure lasts longer than 50 working days, both parties will be entitled to dissolve the agreement. In that case Seller will not be required to pay any damages.
Article 15. Conversion
1. If a provision of these General Terms and Conditions appears to be invalid, that provision will automatically (by operation of law) be replaced by a valid provision that corresponds as closely as possible to the purpose of the invalid provision. If necessary, the parties must enter into reasonable consultations about the text of that new provision.
2. In that case the other provisions of the General Terms and Conditions will remain fully valid in so far as possible.
3. These terms and conditions appear in two languages, Dutch and English. In case of differences in interpretation, the Dutch version has priority.
Article 16. Settlement of Disputes
1. Unless the parties have agreed an arbitration in consultation, parties will have their differences settled by mediation, or, such failing, by the civil court that is competent at the location where Seller has his registered office, unless another court is competent pursuant to the applicable mandatory rules of the law chosen in Article 17.
2. In the event of a dispute the parties will, however, first try to reach a solution in consultation, or otherwise by means of mediation, before the parties submit the dispute to an arbitration tribunal or to the civil court.
3. Seller will at all times have the right to summon Buyer before the court that is competent by law or pursuant to the applicable international convention.
Article 17. Applicable Law
1. All agreements between Seller and Buyer are governed by the law of the country where Seller has his registered office.
2. In case Seller and Buyer do not have their registered offices in the same country, the United Nations Convention on the International Sale of Goods (the Vienna Sales Convention) will also apply, provided its terms do not oppose these General Terms and Conditions and do not conflict with the rules of mandatory law of Seller's country.
Andijk, 11 June, 2010
Ir. G.C.M. Bentvelsen, Director