Sales Terms and Conditions of AgricSeed B. V .
Applicability of the general terms and conditions
These terms and conditions of sale ("terms") shall apply to all offers and agreements
relating to the sale and delivery of goods (such as seeds) and services (such as
treatment, research, consultancy and licenses) (the "products") by AGRICSEED B.V., its
subsidiaries, affiliates and/or licensees or such other party permitted under these terms
(both individually and collectively "AGRICSEED").
Definitions (in these terms and conditions of sale):
"Customer" means the person or company who accepts AGRICSEED's order for the sale
of Products and Services or whose order for Products, Goods and Services is accepted
by AGRICSEED.
"Contract" means a contract for the sale and purchase of Products and Services
between the customer and AGRICSEED who supplies the Products and Services to
customer. If the customer and AGRICSEED have agreed and signed a specific contract
for the supply of Products or Services, the terms of such contract shall take precedence
over theses standard terms.
"Terms" means the standard terms and conditions of sale as set out in this document
and any other special terms agreed in writing in a Contract between the customer and
AGRICSEED to the exclusion of all other terms or conditions.
"Products" means goods, such as seeds of plants, spores of plants, fungi or bacteria,
pollen, coated seed, coated seed, treated seed, bulbs, tubers, seedlings, embryo’s,
plants or other starter material or technology to be supplied to the customer under a
Contract.
"Goods" means goods such as, seeds of plants, spores of plants, fungi or bacteria,
pollen, coated seed, treated seed, bulbs, tubers, seedlings, embryo’s, plants or other
starter material or technology to be supplied to the customer under a Contract.
''Services" means services such as but not limited to consultation, training and advise to
be supplied to the customer under a Contract.
"Actives" means active ingredients such as, inter alia, plant protection products,
stimulants or biologicals seek to protect the seed and crops against diseases, pests and
stress and/or stimulate the growth of seedlings and plants.
"Sanctioned Person" means any person, organization or vessel designated on the
United Nations Consolidated Lists, the Consolidated List of Financial Sanctions Targets
maintained by the US Government's Denied Persons List, Entities List, Debarred Parties
List and Terrorism Exclusion List or on any list of targeted persons issued under the
Economic Sanctions Law of any other country (including the European Union);
that is, or is part of, a government of a Sanctioned Territory;
owned or controlled, directly or indirectly, by, or acting on behalf of, any of the
foregoing; or
incorporated within, located within or operating from a Sanctioned Territory and subject
to any Economic Sanctions Law; or
otherwise targeted under any Economic Sanctions Law.
"Economic Sanctions Law" means any laws, regulations, or other binding measures of
the European Union, any EU member state, the United Nations, the United States of
America or any other jurisdiction applicable to the Parties which relates to economic or
trade sanctions, export controls, non-proliferation, anti-terrorism or similar restrictions.
"Sanctioned Territory" means any country or other territory subject to a general export,
import, financial or investment embargo under Economic Sanctions Law from time to
time.
Article 1 Orders
An order shall only have been accepted by AGRICSEED if and when AGRICSEED either
(i) has sent the customer a written (electronic) order confirmation or (ii) has accepted
and processed the order. In that case and from that time onwards the order shall be
binding.
Article 2 Offers and prices
Offers and prices of AGRICSEED shall always be without engagement. Oral offers shall
lapse after seven (7) days and written orders after thirty (30) days unless otherwise
stated in writing.
Article 3 Notices and communications
Unless stipulated otherwise, all communications concerning (the implementation or
performance of) any order or agreement shall be made in writing.
Article 4 Information and data
All indications and descriptions in respect of type, properties, applications,
performance etc. of the products to be delivered by AGRICSEED as contained in
brochures, product information sheets (as available either on AGRICSEED's website or
upon first request) or other documents of AGRICSEED, shall solely be meant as general
information and for general guidance only and not as an indication of quality and/or
guarantee.
AGRICSEED shall use its best endeavours to achieve accuracy and consistency when
formulating the indications and descriptions as well as constant quality improvement.
The customer, however, acknowledges that AGRICSEED cannot guarantee, warrant or
represent that the products in all cases shall give results which conform to the
indications and descriptions of AGRICSEED, which results shall depend on a variety of
factors including location, cultivation measures, climatic circumstances and/or
customer' knowledge. The customer shall be solely responsible for determining the
suitability and appropriateness of the use of the products under different conditions
and/or for different purposes.
Article 5 Conditions
Conditions for import/export
The customer shall inform AGRICSEED in writing of any statutory and/or regulatoryrequirements (if any) of the relevant authorities necessary for the delivery of the
product, especially regarding, inter alia,:
invoicing;
international certificates;
import documents or declarations; and/or
the allowance of pesticides and other relevant chemicals.
Article 6 Delivery time
The delivery time shall be the minimum time necessary for AGRICSEED to deliver the
product to the customer.
Any delivery time as stated by AGRICSEED shall only be an indication and shall not
constitute a deadline. In the event of late delivery, the customer shall put AGRICSEED in
default in writing and grant AGRICSEED a reasonable term to comply with the
agreement.
If the customer fails to make any data, information and/or matters agreed upon and/or
required by AGRICSEED for the execution of the order, available to AGRICSEED fully or
in time, this shall automatically result in the postponement of any agreed delivery times
to be observed by AGRICSEED.
Article 7 Delivery and product allocation
AGRICSEED shall always be entitled to have the agreement performed by its subsidiary,
affiliate and/or licensee after consultation with the customer.
AGRICSEED shall deliver the products EXW from the premises of the contracting
AGRICSEED company according to the latest version of the "INCOTERMS", as published
by the International Chamber of Commerce or on such other terms designated under
the INCOTERMS as may be expressly agreed upon in writing.
In case of the sale and delivery of goods in Europe Article 138, section 1 of Directive
2006/112 shall be applicable.
In the event that AGRICSEED does not have sufficient product or production capacity to
serve all customers for all orders (whether previously accepted or not), AGRICSEED may
then allocate the product among its customers at its sole discretion.
Article 8 Ownership and risk
AGRICSEED shall retain title to and ownership of the products until it has received
payment in full of all sums due under the relevant agreement and any other agreement
between AGRICSEED and the customer.
Article 9 Insurance
The customer shall at all times have in place adequate insurance against any possible
claim arising from the indemnities given in accordance with article 14 of these terms.
On request, the customer must show AGRICSEED a copy of the insurance policy
concerned which shows that the customer has complied with the above-mentioned
obligation.
Article 10 Force majeure
Force majeure on the part of AGRICSEED shall in any case be understood to mean:
any circumstance concerning people and/or materials used or normally used by
AGRICSEED in the performance of the agreement which is of such a nature that the
performance of the agreement becomes impossible or becomes so onerous and/or
disproportionately expensive for AGRICSEED that performance of the agreement can, in
reason, no longer or not immediately be demanded from AGRICSEED;
strikes; fire; malfunctioning of the ICT infrastructure; the circumstance that a product,
material or service that is important for the performance to be delivered by AGRICSEED
is not delivered to AGRICSEED or is delivered late or improperly;
and/or - government measures, extreme weather conditions, diseases, epidemics etc.
In the event of a force majeure AGRICSEED shall be excused performance of the
agreement while the force majeure situation continues. If a situation of force majeure
lasts for more than four (4) weeks, either party shall be entitled to terminate the
agreement.
In the event of force majeure AGRICSEED shall not be obliged to pay any damages.
Article 11 Infringement
If AGRICSEED by delivery of the products infringes or threatens to infringe the
intellectual property rights of third parties AGRICSEED shall, at its sole discretion, be
entitled to either suspend or terminate the execution of the order.
In the cases referred to in the previous paragraph AGRICSEED shall not be liable to pay
any damages to the customer.
Article 12 Payment
The prices and conditions of payment for the delivery of the products are stated in
AGRICSEED's recent (non-binding) price list or agreed between AGRICSEED and the
customer in writing and/or appear from the (pro forma) invoice.
Amendment of the prices and conditions of payment shall be made by AGRICSEED at
any time. AGRICSEED shall inform the customer accordingly.
AGRICSEED is further entitled to amend the prices and conditions of payment at any
given time during the year. If in such a case a customer does not agree with the
amendments as proposed by AGRICSEED, it shall be entitled within 30 days after
receipt of the notification from AGRICSEED to terminate the agreement after execution
and payment of the last order at the original price level, with the exception, however, of
amendments as a result of any rules or regulations.
Any new prices shall supersede any earlier prices and apply to all new orders accepted
by AGRICSEED after notification of the new prices to the customer.
Unless stated otherwise, all payments shall be made in the currency on the invoice in
accordance with the conditions as stated on the invoice and within the stated period,
without any suspension, deduction or set-off.
Where the customer fails to pay the amount due to AGRICSEED within the stated
period, AGRICSEED is entitled to charge interest at the rate of 1.5% per month. The
customer is required to pay all costs and expenses (including legal expenses) incurred
by AGRICSEED in order to obtain full performance on the part of the customer.
Unless stated otherwise, all prices are exclusive of value added tax or any similar taxes,
if applicable and any additional costs, such as costs of packing, labelling, testing,dispatch, transport, insurance, certificates or any further handling as well as import
duties and levies.
Article 13 Trademarks and copyright
If the customer wishes to use the name "AGRICSEED" and/or any other trademarks or
trade names owned or used by AGRICSEED, the customer shall be obliged to receive
the prior written permission from AGRICSEED. No other use shall be permitted. The
customer shall also not be allowed to use any similar trademarks or trade names.
AGRICSEED shall retain the copyright in respect of all test results, documents, reports
etc. it has prepared within the scope of the performance of the agreement. Publication
or disclosure as well as use of the same shall not be allowed without the prior written
permission from AGRICSEED.
Article 14 Liability and indemnification
Subject to any other provisions of these terms and subject to adequate proof by the
customer AGRICSEED's liability - on any account whatsoever - shall in all cases be
limited to the amount of the net invoice value of the order. AGRICSEED shall, however,
never be liable for any consequential damages, including but not limited to loss of
profits, or any other special, incidental or indirect damages of any kind or type.
The customer shall, if and to the extent permitted by law, defend and fully indemnify and
hold AGRICSEED harmless from and against (i) any and all liabilities, losses, damages,
costs or expenses, directly or indirectly, incurred or suffered by AGRICSEED as a result
of the customer's breach of any provisions of these terms or the agreement between the
parties and (ii) all actions, proceedings, claims or demands made by third parties arising
from and/or relating to the performance of the agreement, irrespective of what reason.
The customer shall inspect the products immediately upon delivery. Any visible defects,
damage, or shortages must be reported to AGRICSEED in writing within five (5) days
after delivery. Any defects which were not reasonably discoverable upon delivery
(hidden defects) must be reported to AGRICSEED in writing within fourteen (14) days
after delivery or within five (5) days after the defect was discovered or reasonably could
have been discovered. All defect claims must be confirmed in writing, including
reasonable evidence of the alleged defect, within thirty (30) days of the initial
notification. Failure to comply with these requirements shall result in the loss of the
right to claim in respect of such defects. If any products delivered by AGRICSEED are, in
the customer's opinion, deficient or damaged in any way, such products shall at
AGRICSEED's discretion, either be made available to AGRICSEED for inspection or
returned to AGRICSEED. Any such products may only be used, sold or otherwise
disposed by the customer after the prior express written approval by AGRICSEED. In
such a case the customer shall defend AGRICSEED and shall fully indemnify and hold
AGRICSEED harmless against any loss or damage suffered by any third party.
AGRICSEED may then withdraw any right to use any of AGRICSEED's trademarks or
trade names.
AGRICSEED shall not be liable to the customer or any other person if the products
delivered by AGRICSEED are (i) processed, treated, modified or damaged in any way by
the customer, a third party or by any event or occurrence or (ii) incorrectly used and/or
stored after the products have been delivered by AGRICSEED.
Article 15 Actives
The addition of actives to the product shall be requested by the customer as part of the
purchase order in accordance with AGRICSEED's standard product list and as further
described in AGRICSEED's product information sheets and as prescribed by the
manufacturer concerned, unless the customer has given instructions to apply
alternative dosages and/or other actives, if and to the extent in accordance with
applicable laws and regulations.
AGRICSEED shall only be liable for the correct addition of the actives (such as dosages)
within the prescribed tolerances.
AGRICSEED shall not be liable for any damages (incurred by either the customer and/or
any third party) resulting from the characteristics and/or usage of the actives and/or for
the effects of actives on the quality of seeds and/or the incorrect use of the seeds or
other starter material treated with such actives and/or any other risks for human beings
and the environment.
AGRICSEED shall not be liable for any damages resulting from the addition of specific
actives different from AGRICSEED's standard product list at the customer's request or
instructions.
AGRICSEED shall not be liable for any restrictions imposed, or to be imposed by a
government agency on the use of and/or trade in seeds which have been treated with
actives.
In case of any registered actives AGRICSEED uses only those dosages which are
prescribed by the manufacturer and/or those dosages which are legally established by
the official institution of admission.
In case of seeds treated with actives the customer shall always be responsible for
providing the end-user of the seeds with such information on the packing material and
accompanying documents as required by the applicable laws and regulations.
Article 16 Complaints
The customer shall inspect the delivered products immediately upon delivery. Any
visible defects, damage, or shortages must be reported to AGRICSEED in writing within
five (5) days after delivery. Any defects which were not reasonably discoverable upon
delivery (hidden defects) must be reported to AGRICSEED in writing within fourteen (14)
days after delivery or within fourteen (14) days after the defect was discovered or
reasonably could have been discovered.
The complaint must clearly state the nature of the alleged defect and the grounds for
the complaint. All complaints must be confirmed in writing, including reasonable
supporting evidence, within thirty (30) days after the initial notification of the defect.
Failure to comply with these requirements and time limits shall result in the loss of the
right to claim, and the customer’s rights in this respect shall automatically lapse and
become null and void. If a complaint is made, the products concerned shall, at
AGRICSEED’s discretion, either be made available for inspection by AGRICSEED or
returned to AGRICSEED. Complaints shall not be accepted if the products have been
processed, treated, resold, or sown, unless AGRICSEED has given its prior written
consent. The customer shall retain the products concerned and provide AGRICSEED
with a reasonable opportunity to inspect the products and the conditions under which
they have been stored, handled, or transported. Samples retained by AGRICSEED fromthe relevant seed lot shall form the basis for all determinations concerning the quality
and condition of the delivered products. If the customer disputes the results of
AGRICSEED’s tests, Naktuinbouw or another internationally recognized and accredited
seed testing laboratory, to be appointed at AGRICSEED’s discretion, shall examine the
retained samples of the delivered products (or, in the case of treated seeds, both
treated and untreated samples of the same lot). The results of such examination shall
be final, conclusive, and binding upon both parties. The costs of such examination shall
be borne by the non-prevailing party.
Article 17 Field Performance Disclaimer
AGRICSEED warrants that the seeds delivered correspond to the agreed specifications
and applicable quality standards at the time of delivery. However, AGRICSEED does not
guarantee the performance, yield, or suitability of the seeds under all growing, soil,
climatic, or cultivation conditions, as such conditions are beyond AGRICSEED’s control.
Variations in field performance may occur due to factors including, but not limited to,
soil conditions, climate, cultivation practices, storage conditions, pests, diseases, or
other environmental factors. Accordingly, AGRICSEED shall not be liable for any loss of
crop, loss of yield, or other consequential or indirect damages resulting from the use of
the seeds.
Article 18 Suspension or termination
If the customer fails to perform one or more of its obligations properly and/or timely or if
it is likely that the customer will not (be able to) meet its obligations properly and/or
timely:
the obligations on the part of AGRICSEED shall be automatically and immediately
suspended until all amounts which are due and payable have been paid in full or any
other obligation under these terms has been properly performed by the customer;
and/or AGRICSEED may demand (prior) payment in full and/or sufficient security from
the customer (such as a bank guarantee to be issued by a bank approved by
AGRICSEED) in respect of the performance on the part of the customer; or AGRICSEED
may forthwith terminate the agreement with the customer; all of the foregoing without
prejudice to AGRICSEED's right to claim damages or compensation from the customer.
Article 19 Severability
If any provision in these terms is (i) void; (ii) voidable by a party; (iii) unenforceable; or (iv)
illegal it is to be read down so as to be valid and enforceable or, if it cannot be read
down, the provision is or, where possible, the offending words are to be severed from
these terms without affecting the validity or enforceability of the remaining provisions
(or parts of those provisions) of these terms.
Article 20 Extinction of rights
Unless AGRICSEED decides to prolong the period, the customer shall enforce its rights
under the agreement within one (1) year after they have arisen by instituting legal
proceedings, failing which any and all rights of the customer against AGRICSEED shall
expire by force of law.
The above provisions do not detract from any other provisions of these terms on the
strength of which one or more rights of the customer have already become extinct at an
earlier stage.
Article 21 Applicable law
Each and every juridical relationship between AGRICSEED and the customer shall be
governed by, and construed in accordance with, the laws of the Netherlands. The
applicability of the 'United Nations Convention on Contracts for the International Sale of
Goods' shall be expressly excluded.
Article 22 Disputes
All disputes, including summary proceedings, relating to and/or resulting from these
terms and/or agreements between AGRICSEED and the customer shall, to the exclusion
of all other courts, be settled by the competent court in the district in which the
contracting AGRICSEED company has its registered office.
AGRICSEED shall, however, remain entitled to bring a case before the court that is
competent by law.
Article 23 Ethical Trading, Anti-Bribery Compliance
In accordance with AGRICSEED's commitment to sustainable and ethical business
practices the customer warrants and represents that in connection with any matter
arising under or pursuant to any Contract it shall protect its workers' rights, including by
ensuring: safe and hygienic working conditions, freedom of association, living wages are
paid, working hours are not excessive, no discrimination is practised, no harsh or
inhumane treatment is allowed and no child labour is used;
ensure environmental management programmes are in place
(without prejudice to Conditions in article 23.2) not offer, promise, give or receive any
improper financial payment and/or other improper advantage to or from any person,
customer or supplier; and
not make or offer, directly or indirectly, any payment, gift or other advantage to a public
official with the intention of influencing them and obtaining or retaining an advantage in
the conduct of business
In addition, the customer:
shall comply with all applicable international laws, regulations, codes and sanctions
relating to anti-bribery and anti-corruption. (all of the aforesaid being "Relevant
Requirements");
shall have and shall maintain in place throughout the term of this agreement its own
policies and procedures, including but not limited to adequate procedures to ensure
compliance with the Relevant Requirements, and will enforce them where appropriate;
shall on request by AGRICSEED certify to AGRICSEED in writing signed by an officer of
the customer, compliance with this Condition in article 23 by the customer and all
persons associated with it. The Buyer shall provide such supporting evidence of
compliance as AGRICSEED may reasonably request.
Article 24. Sanctions Compliance
The customer:shall on request by AGRICSEED certify to AGRICSEED in writing signed by an officer of
the customer, compliance with this Condition in article 24, by the customer and all
persons associated with it. The customer shall provide such supporting evidence of
compliance as AGRICSEED may reasonably request;
warrants that neither it nor, to its knowledge, its officers, employees, nor any person
involved by or for it in the performance of any Contract, is a Sanctioned Person; and
shall comply with international Economic Sanctions Law in all respects related to the
performance of any Contract and shall not have any dealings or transactions with any
Sanctioned Person (including in respect of any further sale of the Goods or Seeds if such
dealings or transactions would cause AGRICSEED to be in violation, or to be subject to a
risk of punitive measures being imposed pursuant to, any Economic Sanctions Law.
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