Terms and Conditions of Sale and Delivery of NICKERSON-ZWAAN B.V., Made, The Netherlands
Drawn up by Nickerson-Zwaan B.V., Schanseind 27, 4921 PM Made, The Netherlands, based on the general Terms and Conditions of Sale and Delivery as advised by the section “Voedingstuinbouw” of Plantum NL, Gouda, The Netherlands. The Terms and Conditions of Sale and Delivery of Nickerson-Zwaan B.V. 2004, are deposited at the Chamber of Commerce of Breda, The Netherlands (nr. 24144712). These terms and conditions replace all previously published issues
Article 1. Application of General Terms and Conditions
1. These General Terms and Conditions apply to all offers and all agreements made between Nickerson-Zwaan B.V., hereinafter to be called the Seller, and a Buyer, except in so far as expressly otherwise provided in writing.
2. The application of any General Terms and Conditions of the Buyer is expressly rejected.
Article 2. Definitions
1. Product: seeds, plant material and/or other goods and/or agreed services.
2. Processing: treatment of the product, but not exclusively, for the purpose of improving sowability, emergence, and/or prevention and/or spreading of pests and/or diseases.
Article 3. Offers and Prices
1. The offers made by the Seller are without commitment and can be withdrawn by him/her at any time.
2. The offer can only be accepted when made in writing; the Seller however has the right to accept a verbal agreement, as if this was done in writing.
3. In the case the Buyer accepts the offer, the Seller still has the right to withdraw the offer within 3 working days after receipt of its acceptance (verbally or in writing), which then means that between both parties there is no agreement made.
4. Verbal offers automatically expire in case not confirmed by the Buyer in writing within 5 days.
5. Offers made in writing automatically expire in case not confirmed by the Buyer in writing within 30 days.
6. The Seller reserves the right to change prices. Each new price listing will invalidate the preceding one with regard to all orders placed after the issue of the new price list.
Article 4. Harvesting and Processing Reserve
1. All deliveries are subject to the customary seed trade harvesting and processing reserve. If the Seller invokes the harvesting or processing reserve, the Seller is not obliged to supply, but will, if possible, try to supply pro rata to the quantity ordered or equivalent alternatives.
2. The Buyer is not entitled to damages if the Seller invokes this reserve.
Article 5. Ordering and Delivery
1. If the quantity ordered in any order differs from the standard quantity applied by the Seller or a multiple thereof, the Seller is free to deliver the next highest quantity.
2. The Seller will always act to the best of his ability in fulfilling his obligation to deliver.
3. Sound fulfilment of the Seller’s obligation to deliver, allows for delivery with a minor difference in size, packaging, number or weight.
4. The Seller is permitted to make split-deliveries of the products sold. If the products are split-delivered, the Seller has the right to invoice each delivery separately.
5. Delivery will be ex-works (EXW) of the Seller according the Incoterms 2000. Transport, documentation and transport insurance can be arranged by Seller upon request of the Buyer.
6. The Seller undertakes to deliver within a reasonable period, in accordance with the sowing or planting season following the conclusion of the purchase agreement.
7. An agreed delivery period will not be of the essence. In the event of late delivery, the Buyer must therefore give the Seller notice of default in writing and grant a reasonable period in which the Seller may complete the agreement.
8. For orders with a value of less than EURO 200,- the Seller reserves the right to charge an administrative and order handling fee.
9. The Buyer must specify in writing, upon first request of the Seller, what data, specifications and documents are required pursuant to the regulations of the country in which the delivery is made, such as those relating to invoices, phytosanitary requirements, international certificates and other import documents or import statements.
Failure to do so correctly will not render the Seller liable to damages if the order is delayed or not executed.
Article 6. Suspension
1. If the Buyer fails to fulfil one or more of its obligations or to do so correctly and/or in time:
the Seller’s obligations will automatically and immediately be suspended until the Buyer has paid all amounts due and payable by it (including payment of any out-of-court costs);
the Seller may demand full payment and/or sufficient security from the Buyer, for instance in the form of a bank guarantee to be issued by a reputable Dutch banking institution, with regard to the performance by the Buyer.
2. The Seller is entitled to demand full payment and/or sufficient security for the performance by the Buyer before performing, if there is reason to believe that the Buyer will not or cannot fulfil its obligations correctly and/or in time.
Article 7. Retention of Title
1. Title to the products delivered by the Seller will remain vested in the Seller until the Buyer has paid the purchase price in full. This retention of title also applies to any claims that the Seller may acquire against the Buyer due to the Buyer’s failure to fulfil one of his obligations towards the Seller.
2. Products delivered by the Seller, to which the retention of title pursuant to Article 7 paragraph 1 applies, may be resold or used only in the normal course of business. If they are resold, the Buyer is obliged to demand a retention of title from his own Buyers.
3. The Buyer is not permitted to pledge the products or to create any other right with regard to the products.
Article 8. Payment
1. The Seller must receive payment within 30 days of the invoice date unless otherwise agreed in writing. At the end of that period, the Buyer will be in default; the Buyer will owe interest at a rate at 1 (one) % a month on the outstanding amount as from the date of default.
2. If the Buyer is liquidated, declared bankrupt or granted a suspension of payments, the Buyer’s payment obligations will fall due immediately and the Seller will be entitled to suspend the further performance of the agreement or to dissolve the agreement, all of this without prejudice to the Seller’s right to claim damages.
3. If payment in instalments has been agreed, the entire remaining amount will fall due immediately without notice of default being required in the event of late payment of an instalment. The provisions of the last sentence of Article 8 paragraph 1 apply accordingly.
Article 9. Collection Costs
If the Buyer fails to perform one or more of his payment obligations, all the costs of obtaining payment in and out of court will be for the Buyer’s account.
Article 10. Use and Guarantee
1. The Seller guarantees that the product delivered will comply, to the best of the Seller’s ability with the relevant product specifications. However, the product specifications will not apply as a guarantee. If the products delivered do not comply with the product specifications, the Buyer will be informed. The Seller furthermore does not guarantee that the performances rendered will comply with the purpose to which the products are put by the Buyer.
2. All information on quality provided by the Seller will be exclusively based upon reproducible tests on samples. The supplied information can not provide an absolute guarantee, and merely indicates the result at the time when and in the circumstances in which the test was performed. No direct relationship may be assumed between the information provided and the results achieved by the Buyer. The result depends, among other things, on the location, cultivation measures and climate conditions.
3. Any and all guarantees on the part of the Seller will lapse if the Buyer processes the products or has them processed, repackages the products or has them repackaged, or uses the products incorrectly.
Article 11. Notification of Defects and Deficiencies
1. The Buyer must inspect the products purchased upon delivery, or as soon as possible after delivery. In doing so the Buyer must check whether the products delivered comply with the agreement, i.e.:
- whether the correct products have been delivered;
- whether the quantity of the products delivered corresponds with the agreement;
- whether the products 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, the Buyer must inform the Seller accordingly in writing within 3 working days after delivery, specifying the lot number, delivery note and/or invoice details.
3. The Buyer must report any invisible defects to the Seller in writing within 3 working days after discovery, specifying the lot number, delivery note and/or invoice details, including test results when relevant.
4. Complaints must be described in such a manner that the Seller or a third party can verify them. For that purpose the Buyer must also keep records with regard to the use of the products and, in the event of resale of the products, with regard to his buyer(s). If the Buyer does not file a complaint within the aforesaid period, the Buyer’s complaint will not be dealt with and rights will expire.
5. In the event of a permanent dispute between the parties concerning the germination capacity, varietal trueness, varietal purity or technical purity and health, an inspection may be performed at the request of either party by the Naktuinbouw (Netherlands Inspection Service for Horticulture), having its registered office in Roelofarendsveen, The Netherlands. This request must be made within 6 months after the first official announcement of the complaint [according article 1 to 4]. The costs of this investigation will be covered by the party concluded to be dominantly wrong. The inspection will be carried out on the basis of the before sale taken and retained sample by the Seller. This is done under the supervision and control of the Naktuinbouw. The outcome of this 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 18.
Article 12. Provision of Information
1. Information provided by the Seller in any form whatsoever is without commitment. Descriptions, recommendations and illustrations in brochures, leaflets and on web sites, are based as closely as possible on experiences in tests and in practice. The Seller in no event, accepts any liability, however, on the basis of such information for different results obtained in the cultivated product. The Buyer must determine whether the products are suitable for the intended horticultural crop and/or can be used under local conditions.
2. In the information provided by the Seller, the definitions of the used terminology are as follows :
a) ‘Immunity’: not subject to attack or infection by a specified pest or pathogen;
b) ‘Resistance’: the ability of a plant variety to restrict the growth and development of a specified pest or pathogen and/or the damage they cause when compared to susceptible plant varieties under similar environmental conditions and pest or pathogen pressure. Resistant varieties may exhibit some disease symptoms or damage under heavy pest or pathogen pressure.
Two levels of resistance are defined:
I. High resistance (HR): plant varieties that highly restrict the growth and development of the specified pest or pathogen under normal pest or pathogen pressure when compared to susceptible varieties. These plant varieties may, however, exhibit some symptoms or damage under heavy pest or pathogen pressure.
II. Intermediate resistance (IR): plant varieties that restrict the growth and development of the specified pest or pathogen, but may exhibit a greater range of symptoms or damage compared to resistant varieties. Intermediate resistant plant varieties will still show less severe symptoms or damage than susceptible plant varieties when grown under similar environmental conditions and/or pest or pathogen pressure.
The standard abbreviations HR (high/standard resistance) and IR (moderate/intermediate resistance) shall be used in all languages.
c) ‘Susceptibility’: The inability of a plant variety to restrict the growth and development of a specified pest or pathogen.
Tolerance is the ability of a plant variety to endure abiotic stress without serious consequences for growth, appearance and yield.
Article 13. Force Majeure
1. Force majeure means all circumstances, which cannot be attributed to the Seller and which prevent a reasonable fulfilling of the obligation. Such circumstances can be strikes, fire, extreme climatic conditions, government measures, diseases, pests and defects in products supplied to the Seller.
2. The Seller will inform the Buyer as soon as possible if he is unable to deliver or to deliver in time due to an event of force majeure.
3. If the event of force majeure lasts longer than 60 days, both parties will be entitled to dissolve the agreement. In that case the Seller will not be required to pay any damages.
Article 14. Liability
1. The Seller is not liable for any damage resulting from a shortcoming of the product(s) supplied, except in the case of intent and/or gross negligence on the part of the Seller and/or his employees.
2. The Seller will not be required to pay any damages, in the case of force majeure as described in Article 13.
3. The Seller does not accept any liability for damage as a result of non-delivery or late delivery nor for failure to correctly specify the requirements as referred to in Article 5, Paragraph 7, if as a result thereof the order cannot, or cannot be timely, delivered.
4. The Buyer is required to limit as much as possible the damage with regard to performances about which a complaint is filed with the Seller.
5. The Seller is not liable for any damage caused by seed of plant material that has not been multiplied and/or reproduced by or on behalf of the Seller.
6. If the Seller is liable on the basis of one or more conditions, such liability will be limited to the invoice value of the delivery in question; the Seller will in no event be liable for any form of consequential damage.
7. If the Buyer is not the end-user and/or resells or redistributes the products, he is obliged to communicate to further parties all limiting terms and conditions, including those related to product specifications.
Article 15. Use of Trademarks and Signs
The Buyer may not use trademarks and signs that are used by the Seller to distinguish his products from those of other legal entities/companies, or use trademarks and signs that are not clearly distinguishable from those of the Seller. An exception applies to the trade in products in the original packaging of the Seller with the trademarks and signs placed on them by the Seller.
Article 16. Restriction on reproduction and / propagation
1. Buyer is not allowed to use the delivered products and/or components and/or harvested material for further multiplication and/or reproduction. It is also not allowed for products and/or components and/or harvested material hereof: I) to use these for the purpose of multiplication, II) to offer for sale, III) to sell, IV) to import and/or export, and/or V) to have material in stock for any of these purposes. This restriction also applies for varieties derived or indirectly derived from a delivered variety.
2. In case of re-selling of the delivered products, the Buyer shall impose the above clause on its buyer, under the penalty of a fine for each infringement. The amount of the fine will not be less than the benefit obtained by the buyer.
3. Buyer is obliged to allow the holder of the plant breeders’ rights, or the party representing him, direct access to its business, including in particular the greenhouses, in order to enable the Seller or the party representing him, to control, in case of suspicion of multiplication and/or reproduction of base material. In the Buyer’s business is included as well the company activities carried out by third parties on behalf of the Buyer. Buyer will grant upon first request immediate access to all his relevant administration related to the product and reproduction material.
Article 17. Conversion
1. If a provision of these General Terms and Conditions is invalidated, that provision will automatically (by operation of law) be replaced by a valid provision that corresponds as closely as possible to the purport of the invalid provision. The parties must, if necessary, 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.
Article 18. Settlement of Disputes
1. Unless the parties have agreed on arbitration in consultation, any disputes will be settled by the civil court that is competent in first instance in the place where the Seller has his registered office, unless another court is competent pursuant to the applicable mandatory rules of the law chosen in Article 19.
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.
Article 19. Applicable Law and other applicable conditions
1. All agreements between the Seller and the Buyer are governed by the law of the country of the Seller.
2. The International Seed Federation Rules and Usage for the Trade in Seeds for Sowing Purposes apply to all agreements and/or offers for sale addressed to Buyers located outside the Seller’s country, except in so far as otherwise provided in these Terms & Conditions of Sale and Delivery.
3. If the Seller and the 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, in so far as it does not differ from these General Terms and Conditions and in so far as it does not conflict with the rules of mandatory law of the Seller’s country.
4. In case of doubt about the interpretation of these Terms and Conditions of Sale and Delivery in the English language, the Dutch version of the Nickerson-Zwaan B.V. terms and conditions, which are deposited at the Chamber of Commerce in Breda, The Netherlands, will prevail.