General Terms and Conditions of Sale and Delivery of Rijk Zwaan South Africa Pty Ltd applicable to all offers and agreements and based on the recommended General Terms and Conditions of Sale and Delivery for the Seed Trade and Planting Materials Sector as advised by the Vegetable Seeds Department of Plantum NL, Vossenburchkade 68, 2805 PC Gouda, The Netherlands.
These General Terms and Conditions of Sale and Delivery are valid as of 01-07-2015
Article 1 Applicability
These terms and conditions are applicable to all offers and agreements between Rijk Zwaan South Africa Pty Ltd (hereafter called the seller), and the buyer, to which the seller has declared these terms and conditions applicable, unless and insofar as not expressly otherwise agreed in writing.
The applicability of any general terms and conditions of the buyer is hereby expressly excluded.
Article 2 Offers, agreements, prices
Offers made by the seller are non-binding and open to revocation by the seller at any time prior to acceptance by the buyer. Prices quoted in an offer are inclusive of value added tax. Prices are given in ZAR, ex-works RIjk Zwaan South Africa - Krugersdorp, Incoterms 2000.
The seller reserves the right to adjust its prices periodically. Any new price quotation supersedes the former quotation as regards orders placed after the date of the new quotation.
If in an order the required quantity differs from the seller's standard packing unit or its multiple, the seller will be free to supply the next higher quantity.
All given weights and numbers are net weights and numbers.
An offer made to the buyer or a sale agreement between the seller and the buyer does not imply and may not be interpreted by any means as an implied licence to the buyer with regard to any intellectual property on the goods offered or sold.
Article 3 Order documentation
When placing its order, or at the seller’s first request, the buyer must specify in writing what information, specifications and documents are required pursuant to the regulations of the country in which the delivery is made, such as those relating to: invoicing; phytosanitary requirements
international certificates and other import documents or import statements.
Article 4 Good crop and processing reservation
All deliveries are subject to the usual crop and processing reservation. In the event that the seller makes a justified appeal to this reservation, the seller is not obliged to deliver but will endeavour to deliver pro-rata quantities or comparable alternatives. In such a case the buyer is not entitled to any compensation whatsoever.
Article 5 Supply
The Incoterms 2000 will be applicable. Delivery will take place ex works Krugersdorp unless otherwise agreed.
If transportation is left to the seller, it will be executed in such a manner as deemed best by the seller. Any extra costs incurred by the seller as a result of special demands made by the buyer concerning transportation will be charged to the buyer.
Article 6 Delivery time
The seller is obliged to deliver at a reasonable time in conformity to the relevant sowing or planting season after the agreement has been concluded, unless otherwise agreed. However, any agreed delivery time shall not be binding upon the seller and time shall not be of the essence. In the event that a delivery is overdue, the buyer shall inform the seller accordingly in writing and at the seller a reasonable period of time within which to effect delivery.
Article 7 Partial deliveries
The seller shall be permitted to effect partial deliveries of the goods, unless such partial delivery would, when reasonably and fairly considered, have no independent value. In the event of partial deliveries, the seller is entitled to invoice each delivery separately.
Article 8 Retention of title
The goods delivered by the seller and/or the products originating from the delivered goods remain the property of the seller until the buyer has paid for them in full. In the case of non-payment by the buyer by the due date for payment (regard being had to these general terms and conditions and the terms of any other agreement concluded between the seller and the buyer) the seller shall be entitled, without limitation to the remedies available to it in law, to claim the return of the goods and in which regard the buyer undertakes to cooperate fully with the seller in the return of the goods. Upon such return, the buyer will not have the right to any compensation from, or have any claim against, the seller
The goods delivered by the seller and/or the products originating from the delivered goods to which the retention of title pursuant to paragraph 1 of this article applies:
a) shall at all times be stored and/or used by the buyer in such a way that the goods and/or products can be easily identified as the seller’s property, and
b) may only be used or sold by the buyer for normal operational purposes.
In the event of resale the buyer shall stipulate a retention of title for the benefit of the seller in accordance with the preceding provisions of this article. The buyer is not permitted to pledge or encumber the goods or to allow any other claim on them unless and until such time as the buyer has effected payment in full to the seller for such goods.
Article 9 Terms of Payment
Payment is due on the date mentioned on the invoice accompanying the goods. Any discounts given by seller are subject to the condition that buyer pays before the due date. Should seller not have received payment before the due date, any discounts given by buyer will terminate and are subject to repayment by buyer to seller.
On overdue amounts interest will be calculated interest at the rate of 1% per month (compounded monthly) as of the date upon which payment becomes overdue. In the event of any payment owing by the buyer to the seller becoming overdue, the seller shall be entitled to suspend or cancel further deliveries to the buyer and the buyer shall not have any claim whatever against the seller for the seller's so doing; provided always that any such suspension or cancellation by the seller shall be without prejudice to the seller's right to seek compensation or any other legal remedy available to the seller.
In the event of any liquidation application being made in respect of the buyer, the buyer becoming subject to business rescue proceedings or the buyer commits an act of insolvency as contemplated in the Insolvency Act, 1934 (or any act which would have been such an act of insolvency had the buyer been a natural person), all amounts owing by the buyer to the seller shall then immediately become due and payable and the seller shall further be entitled, at its election, to suspend or cancel all other orders placed upon it by the buyer and the buyer shall not have any claim whatever against the seller for the seller's so doing; provided always that any such suspension or cancellation by the seller shall be without prejudice to the seller's right to seek compensation or any other legal remedy available to the seller.
If at any time partial payments were agreed upon between the seller and the buyer and the buyer defaults on any one payment, the full remaining amounts will fall due immediately and without further notice. The interest as contemplated in the first paragraph of this article will accrue as of such date on the outstanding balance from time to time.
All bank charges shall be for the buyer’s account.
Article 10 Debt collection charges
If the buyer defaults on one or more of its obligations owing to the seller, then all costs incurred by the seller in enforcing its right shall be borne by the buyer on the attorney and own client scale.
Article 11 Liability
In the event that, in the seller’s opinion, a complaint by the buyer is justified, the seller shall, to the extent possible and at its sole discretion and costs, either make good the damage or replace the goods with non-defective goods. The buyer shall in that event give its full co-operation to the seller. The buyer is under the obligation to limit as much as possible the damages regarding the delivered goods for which he filed a complaint before the seller.The seller shall not be liable for damage suffered by the buyer caused by or otherwise related to defective goods, including their packaging, unless such damage is the result of intentional misconduct or gross negligence on the part of the seller and/or its employees.
If the seller is liable for any damage incurred by the buyer, the seller’s liability shall never exceed the net purchase price excluding VAT of the goods concerned, as charged to the buyer by invoice. The seller shall in any event not be liable for any indirect damage suffered by the buyer such as (but not limited to) consequential damage, trading loss, or loss of profits.
The seller shall furthermore in any event not be liable for damage caused by an alleged delay in the delivery of the goods.
Any potential claim based on these general terms and conditions shall expire if such claim has not been issued to the seller in writing within one year after the delivery of the goods.
Article 12 Use and warranty
The seller guarantees that the goods to be delivered by the seller conform to the best of its knowledge to the descriptions concerning those goods. No guarantees apply to the product specifications, if any: in case the goods delivered do not comply with the product specifications as mentioned in the seller’s catalogue regarding the current selling season, the seller will inform the buyer about this.
The seller does not guarantee that the goods delivered by the seller to the buyer comply with the purpose to which they are put by the buyer. The buyer explicitly acknowledges that, even with the highest quality goods, success in growing depends largely upon cultivation methods, soil and weather conditions.
All quality data provided by the seller in writing are exclusively based on reproducible tests. These data indicate only the result as it is obtained by the seller at the time of the execution of the tests and for the circumstances that applied to the tests. No direct relation may be assumed between the data as provided and the result obtained by the buyer. The result obtained by the buyer depends amongst others from location, cultivation measures, for example the sowing medium used, and/or the climatic circumstances.
Any and all guarantees on the part of the seller lapse if the buyer carries out processes on the goods or causes processes to be carried out on them, repackages the goods or causes them to be repackaged, or uses and/or stores the goods incorrectly or causes them to be used/or stored incorrectly.
The seller does not guarantee in any way that the use, sale, transfer, production or any other possible act involving the delivered goods and/or the use sale, transfer, production or any other possible act involving the goods arising from the delivered goods does not infringe any (intellectual property) rights of third parties.
Article 13 Seed treatment at the request of the buyer
In case the goods, at special request of the buyer, are being treated by or on behalf of the seller, the seller does not provide any guarantee regarding the effectiveness and/or consequences of such treatment. The seller shall not be liable for any damage resulting from treatment, performed at the special request of the buyer. If the seller can nevertheless be held liable for any damages resulting from a treatment, performed at special request of the buyer, the liability of the seller shall be limited to the extent possible and at its sole discretion, to replacement of the goods or crediting the invoice related to the concerned goods. All data concerning the goods are based on tests, executed prior to the requested treatment.
Article 14 Defects, complaints terms
The buyer shall examine the goods on, or as soon as possible after, delivery and shall inform the seller within eight days after delivery in the event that the incorrect goods have been delivered and/or the incorrect quantity has been delivered.
Complaints concerning apparent defects to the goods, including their packaging, must be reported to the seller in writing within eight days after the date of delivery of the goods to the buyer. Complaints concerning alleged non-apparent or hidden defects to the goods, including their packaging, must be reported to the seller in writing within eight days of the date on which the alleged defect concerned was or could reasonably have been discovered by the buyer. Complaints relating to the goods (including their packaging) must be set out in writing and B fully described in such a manner that the seller or a third party can reasonably understand and verify such complaints and further the buyer is obliged in such written complaint to (a) identify the applicable batch, delivery and invoice an (b) indicate under which circumstances the goods have been used and, in case of resale, to whom the goods have been resold. In the event that any complaint is not reported to the seller in writing within the aforesaid period, the complaint will not be dealt with and the buyer will forfeit all rights of recovery against the seller, including the right to recover any damages.
In case of a dispute between the parties about germination, trueness to type, varietal purity, technical purity or health, an assessment may be performed at the request of the buyer and/or the seller by the Naktuinbouw (ISTA station), in Roelofarendsveen, The Netherlands, or by another objective and independent body as agreed upon by the buyer and the seller, for the account of the unsuccessful party. The sample for this assessment will be taken from Rijk Zwaan. In case of a dispute about health, application of ISHI (International Seed Health Initiative) accepted methods is preferred. The outcome of the assessment will be binding on both parties, notwithstanding the right of parties concerned to submit to the authorities referred to in article 21 any disputes about the consequences of this outcome.
Complaints concerning an invoice of the seller must be submitted to the seller in writing within fourteen days after the date of invoice. The submission of a complaint will not give the buyer any right to suspend payment of the invoice concerned.
Article 15 Indemnification
The buyer indemnifies the seller against all claims and rights from third parties for compensation for damage (allegedly) caused by, or otherwise associated with, goods supplied by the seller, including claims and rights which have been submitted against the seller in its capacity as producer of the goods on the basis of any regulations relating to product liability in whatever country, except if said damage is due to intentional misconduct or gross negligence on the part of the seller.
The buyer shall take out sufficient insurance against all possible claims and liabilities emanating from the indemnity given in article 15.1. At first request of the seller, the insurance shall be submitted to the seller for its approval.
Article 16 Advices for cultural practices, variety descriptions, recommendations
Cultural advices from the seller are without engagement. Cultural advices, descriptions, recommendations and illustrations in whatever form are based as precisely as possible on experiences in trials and in practice. However, the seller cannot accept in any case liability on the basis of such information for deviating results in the grown goods. The buyer itself will be deemed to determine whether the goods are suitable to be used for the intended cultivations and under the local conditions.
As used in the information supplied by the seller, immunity, resistance and susceptibility shall mean the following:
Immunity: Not subject to attack or infection by a specified pest or pathogen.
Resistance: is the ability of a plant variety to limit 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. Resistance varieties may exhibit some disease symptoms or damage under heavy pest or pathogen pressure. Two levels of resistance are defined:
High/standard 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.
Moderate/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 high/standard resistant varieties. Moderately/intermediately 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
Susceptibility: is the inability of a plant variety to restrict the growth and development of a specified pest or pathogen.
Article 17 Force majeure
Force majeure is deemed to mean circumstances beyond the seller's control hampering or blocking the fulfilment of the agreement. This will include amongst others, if and insofar as such circumstances unreasonably hamper or block the fulfilment: strikes in other companies than that of the seller, wild strikes or political strikes in the seller's company, general shortages of required raw material and/or other materials necessary for the fulfilment of the agreement, unforeseeable stagnation at suppliers and/or other third parties that the seller depends upon, and general transport problems.In the event of force majeure conditions occurring, the seller will inform the buyer as soon as possible.
In case a force majeure condition exists for longer than two months, both parties will be entitled to terminate the agreement. In such a case, the seller will not be obliged to provide any indemnification.
In case of force majeure, the seller will not be obliged to provide any compensation.
Article 18 Further use/cultivation and inspection
The buyer is not allowed to use the goods delivered for further production and/or reproduction of propagating material.
If the goods delivered are sold on to a third party, the buyer must impose this stipulation on penalty of damages to that third party.
The buyer is under the obligation to allow the seller, or anyone who controls on behalf of the seller, direct access to its business, including and in particular the greenhouses of its business, in order that the seller can carry out or have carried out inspections. “Business” in this article shall also mean any business activities that are carried out by a third party on behalf of the buyer (including any outsource arrangements of whatever type and however described). The buyer shall upon request also allow direct access to its administration with regard to the relevant propagating material.
Article 19 Usage of trademarks, logos and other signs
Unless otherwise agreed in writing, the buyer may not use, nor (cause to) register, trademarks, logos or other signs used by the seller to distinguish its goods from those of other enterprises, and it may not use trademarks, logos or other signs resembling them. This does not apply to the trading of the goods in their original packaging material which the seller has, or has had, provided with trademarks, logos or other signs.
The buyer may only dispose of any goods to a third party if the buyer obtains an identical stipulation to the foregoing by such third party in favour of the seller; provided further that should the buyer failed to do so, it shall be deemed to have indemnified the seller against all harm, loss or damages suffered by the seller as a consequence of such non-compliance by the buyer, including consequential losses, to the extent recoverable under applicable law.
Article 20 Conversion
If a provision of these general terms and conditions is invalid, that provision will automatically be replaced by a valid provision that corresponds as closely as possible to the purport of the invalid provision.
In that case the other provisions of the general terms and conditions will remain fully valid insofar as possible.
Article 21 Settlement of disputes
In the event of any disputes emanating from offers and agreements to which these terms and conditions apply, or being connected therewith, the parties will resolve such disputes in an a friendly way. Should this not be possible the dispute, unless parties agree to arbitration, will be settled by a court of law at the domicile of the seller, unless the applicable law according to article 22 provides for another court of law. The seller reserves the right to serve a summons on the buyer to appear in the court of the country where the buyer has its registered office.
Article 22 Applicable law
All agreements between the seller and the buyer are subject to the law of the country of domicile of the seller. The "United Nations Convention on the International Sales of Goods" will be applicable if the seller and the buyer are not domiciled in the same country, except where inconsistent with these terms and conditions or if the law of the country of the seller prevails.
Additional conditions for the sale of seeds per square meter to growers
Article 23 Amount
The amount of seeds to be bought will be determined in consultation by the production advisor of the seller and the buyer. This amount will be mentioned in the order form. To determine the amount of seeds, the number of square meter on which the buyer will grow plants shall be determined first. Said number shall also be mentioned in the order form. Starting point shall be a maximum amount of 2,5 (two and a half) plants per square meter, unless the seller and the buyer explicitly agree otherwise, which shall be mentioned in the order form. A deviation from the aforementioned starting point might have consequences for the price per net square meter.
Article 24 Payment
The price per net square meter as included in the order form is valid for one growing period as indicated in the order form. “Net” means that only the surface that can be used for the production of plants, will be taken into account for the determination of the number of square meters.
Invoicing for the amount due for the seeds, will take place in one term upon delivery.
Article 25 Use of the seeds
The buyer will (cause to) use the seeds only for one production of plants on the number of square meters and in the growing period as included in the order form. In case a variety is grown on more square meters than the square meters agreed upon, the buyer will pay to the seller twice the price as mentioned in article 24 for each square meter that exceeds the number of square meters as agreed upon. In case seeds remain after the period in which plants have been raised, the seller shall collect these seeds.
The buyer is not allowed to provide the seeds or any other material of a variety in whatever form to third parties. The buyer is however permitted to provide the seeds to a plant raiser if i) the plant raiser only uses the seeds to grow young plants for the buyer in accordance with the number of square meters and growing period as included in the order form and ii) the plant raiser delivers all the remaining seeds and all young plants that were grown out of the seeds to the buyer. For this purpose the buyer shall give the relevant information to the seller.