General Terms and Conditions of Sale and Delivery of Rijk Zwaan India Seeds Private Limited.
Definitions and interpretation
General Terms and Conditions of Sale and Delivery of Rijk Zwaan India Seeds Private Limited applicable to all offers and agreements to the sale of goods.
Article 1: Applicability
- These terms and conditions are applicable to each offer and agreement between Rijk Zwaan India Seeds Private Limited (hereafter called the seller) and the buyer insofar as parties do not expressly deviate in writing from one or more clauses of these terms and conditions.
- The applicability of any general terms and conditions of the buyer is hereby expressly declined.
Article 2: Offers, agreements, prices
- Offers made by the seller are non-binding. A non-binding offer can be revoked by the seller up to three working days from receipt of the acceptance by the buyer.
- Prices quoted in an offer are exclusive of sales taxes. Prices are given in Indian Rupees.
- The seller reserves the right to adjust its prices periodically. Any new price quotation supersedes the former quotation as regards orders placed subsequent to 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 sales agreement between the seller and the buyer does not imply and may not be interpreted by any means as an implied license to the buyer with regard to any intellectual property on the goods offered or sold.
- On receipt of the order from the buyer, it is deemed that the buyer holds the necessary licences as required by law to perform the seed transactions specified in the order. Upon first request the buyer will provide the seller with all necessary information, such as the applicable active and valid seed (trading) licenses and VAT registration. The buyer will indemnify the seller for any claims of third parties arising with respect to regarding the non fulfilment of the buyer of the obligations arising from this article.
Article 3: Order documentation
1. 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:
- 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 the crop and processing reservation, the seller is not obliged to deliver but will endeavour to deliver pro-rata quantities or comparable alternatives. In case the seller makes an appeal to this reservation, the buyer is not entitled to any compensation whatsoever.
Article 5: Supply
- Sales are effected with “FREIGHT PAID" basis & as such primary freight (seller to buyer) is borne by the seller.
- Transportation by the seller, 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.
- The buyer is not allowed to return goods to the seller, unless the seller gives permission thereto. The costs of possible return shipments shall be at the buyer’s account.
Article 6: Delivery time
1. Unless agreed otherwise, the goods shall be delivered within one week after the order date, provided a sufficient quantity of the ordered goods is available to the seller. An agreed delivery time, however, is not an expiration date. In the event that a delivery is overdue, the buyer shall put the seller in default accordingly in writing and allow him a reasonable period of time to fulfil the agreement after all.
2. The seller will accept no liability for any losses or for damages suffered by the buyer arising out of delays in delivery, caused by or in any manner arising from force majeure conditions, such as fire, floods, accidents, riots, strikes, lock outs, power cuts, acts of god, government regulations, terrorism or any other cause beyond the seller’s control.
Article 7: Partial deliveries
The seller is allowed to effect partial deliveries of the goods. This will not be applicable, however, if a partial delivery has no independent value. In the event of partial deliveries, the seller is entitled to invoice each delivery separately.
Article 8: Payment
- Payment is due within 60 days from invoice date. In exceeding this term the buyer is automatically in default and shall owe an interest on the overdue amount at the rate of 2% per month as of the moment the default commences. During the default the seller reserves the right to stop further delivery to the buyer.
- In the event of liquidation, bankruptcy of or suspension of payment by the buyer, the payments due by the buyer fall due immediately and the seller is authorised to suspend or cancel any agreement with the buyer, without prejudice to the seller's right to seek compensation.
- If partial payments were agreed upon and the buyer defaults on one term, the full remaining amount will fall due immediately and without further notice. The interest as mentioned in article 9 (1) will be applicable accordingly.
- The bank charges shall be for the buyer’s account.
Article 9: Debt collection charges
If the buyer defaults on one or more of its obligations, then all costs of debt collection, out of court or in court, shall be for the buyer's account.
Article 10: 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 to facilitate such rectification. 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 buyer will file a complaint as soon as possible, unless there are exceptional reasons, such as the failure of season due to extraordinary weather conditions, in which case, the buyer needs to file a complaint within 3 months from the date of invoice.
- 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 amount of the invoice (excluding VAT) regarding the delivery concerned, as charged to the buyer. 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.
Article 11: Use and warranty
- The seller guarantees that the goods to be delivered by the seller conform to the best of its ability 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, weather and soil conditions.
- All quality data provided by the seller in writing are exclusively based on reproducible tests. These data only indicate the result as it is obtained by the seller at the time of the execution of the tests and for the circumstances that applied for 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 12: 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 13: 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 case not the correct goods have been delivered and/or not the agreed 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 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 have to be set out in such a manner that the seller or a third party can verify them and each complaint shall clearly state the batch, delivery and invoice details. The buyer should 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 of the buyer is not reported to the seller in writing within the above stated applicable period, the buyer shall no longer be entitled to any form of recovery, including damages.
- In case of a permanent dispute between the parties about germination, varietal purity,
trueness to type, technical purity or health, an assessment may be performed at the request of the buyer and/or the seller by any ISTA accredited seed testing laboratory, or any other objective and independent body as agreed upon by the buyer and the seller. The sample for this assessment will be taken from Rijk Zwaan. In case of a dispute about health, application of ISHI (International Seeds Health Initiative) accepted testing 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. Submitting a complaint does not give the buyer any right to suspend payment of the concerned invoice.
Article 14: 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 adequate insurance against all possible claims and liabilities emanating from the indemnity given in article 15.1.
Article 15: Growing advices, variety descriptions, recommendations
- Growing advices from the seller are without engagement. Growing 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 by a specified pest or pathogen.
- Resistance: is the ability of a plant variety to limit the growth and development of
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 16: 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 other materials or services 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 case of force majeure, the seller will not be obliged to provide any compensation.
Article 17: Further use/cultivation, 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 the aforesaid 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. The buyer shall upon request also allow direct access to its administration with regard to the relevant propagating material.
Article 18: Usage of trademarks, logos and other signs
- The buyer may not use, nor (cause to) register, trademarks, logos and 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.
- 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.
Article 19: 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 20: 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 a friendly way. Should this not be possible the dispute will be settled by the at first instance competent civil court at the domicile of the seller, unless the applicable law according to article 22 provides for another court of law. The seller remains within its rights, however, to issue a summons against the buyer to appear in the court authorised by the law or applicable international treaty. 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 21: Applicable law
All agreements between the seller and the buyer are subject to the law of the country of domicile of the seller (Bangalore jurisdiction). Besides, 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, in as far as this Convention does not deviate from these terms and conditions and in as far as this Convention is not inconsistent with the compulsory law of the country of the seller.
Additional conditions for the sale of seeds per square meter to growers
Article 22: 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 23: 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 24: 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.