General Terms and Conditions of Sale and Delivery of Rijk Zwaan USA Inc. and Rijk Zwaan Canada Ltd.
Article 1 Applicability
- These terms and conditions are applicable to all sales by Rijk Zwaan USA Inc. (“RZ USA”) or Rijk Zwaan Canada Ltd. (“RZ Canada”), as applicable, to the buyer. For sales by RZ USA, RZ USA will be deemed the contracting party to these terms and conditions. For sales by RZ Canada, RZ Canada will be deemed the contracting party to these terms and conditions. RZ USA or RZ Canada, as applicable, is hereafter called the seller.
- The applicability of any general terms and conditions of the buyer is hereby expressly declined.
- All notices, offers, approvals and/or other communications to be given in writing, referred to in these terms and conditions, may also be given electronically (i.e. by e-mail).
Article 2 Offers, agreements, prices
- All orders submitted by buyer to seller shall be deemed to be a non-binding offer by buyer to purchase the products specified therein pursuant to the terms of these terms and conditions. Such orders must include at a minimum: (a) a detailed identification of the products to be purchased, (b) the specific quantity of products to be purchased, and (c) any additional information that seller may require in writing from buyer from time to time. All orders are subject to written confirmation and acceptance by seller. If an order is accepted by seller, it shall give rise to a contract under the terms set forth in such order and these terms and conditions. In the event of a conflict between any provisions in or under an order and the terms of these terms and conditions, the terms of these terms and conditions shall prevail. Seller shall not be liable for any loss or damage caused by its non-acceptance of any order.
- 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 taxes, unless explicitly specified otherwise by the seller in writing. Prices are given in US Dollars (USD) for sales by RZ USA and Canadian Dollars (CAD) for sales by RZ Canada, based on EX WORKS, Incoterms 2020, unless otherwise agreed in writing.
- The seller reserves the right to adjust its prices periodically. Any new price quotation supersedes the former quotation with regard to 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 an 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
In addition to the other information required pursuant to article 2.1, 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.
The seller will use commercially reasonable efforts to provide such information, specifications, and documents to the buyer, but shall not in any event be liable to the buyer for its inability to do so.
Article 4 Good crop and processing reservation
All offers, sales and 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 2020 will be applicable. For sales by RZ USA, delivery will take place EX WORKS the seller's warehouse in Salinas, California, unless otherwise agreed in writing. For sales by RZ Canada, delivery will take place EX WORKS the seller's warehouse in Leamington, Ontario, unless otherwise agreed in writing.
- Subject to article 5.1, transportation charges, if any, shall be agreed by the parties on an order-by-order basis.
- The buyer is not allowed to return goods to the seller, unless the seller gives permission thereto. The costs of return shipments shall be at the buyer’s account.
Article 6 Delivery time
The seller is bound to deliver at a commercially reasonable time in conformity to the sowing or planting season after the agreement has been concluded (‘deliver’ shall also mean making products available for pick up in accordance with article 5.1). Any agreed delivery time, however, shall be deemed an estimate or forecast only, and not a final term. In the event that a delivery is passed the estimated or forecasted delivery date, the buyer shall inform the seller accordingly in writing and allow the seller a reasonable period of time to fulfil the agreement.
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 Retention of title
- In accordance with article 5.1, the risk with regard to the goods shall pass from the seller to the buyer upon delivery of the goods by the seller to the buyer. Notwithstanding the foregoing, 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 in full for the goods concerned, and has complied with all its (other) obligations towards the seller. In case of non-payment the seller shall have the right to recall the goods and/or products from the buyer, and the buyer shall cooperate with such recall. The buyer does not have the right to claim any means of compensation.
- 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:
- shall at all times be stored and/or used in such a way that the goods and/or products can be easily identified as the seller’s property, and
- may only be used or sold for normal operational purposes.
- In the event of resale the buyer shall stipulate a retention of title for the benefit of the seller. The buyer shall furthermore impose on a buying party the obligations as stipulated in this article 8.
- The buyer is not permitted to pledge the goods or to allow any other claim on them.
Article 9 Terms of Payment
- Payment is due within 30 days from invoice date or as indicated otherwise by the seller. In exceeding this term the buyer is automatically in default and the seller reserves the right in its discretion to charge interest to the buyer on the overdue amount at the rate of 1% per month or the maximum amount permitted by applicable law, whichever is less, as of the moment the default commences. During the default the seller reserves the right to stop further deliveries to the buyer.
- In the event of liquidation or bankruptcy of or suspension of payment by the buyer or its affiliates, payments fall due immediately and the seller is authorised to suspend or cancel any agreement with the buyer or its affiliates, without prejudice to the seller's right to seek compensation or any other legal remedy.
- 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 paragraph 1 of this article will be applicable accordingly.
- The bank charges shall be for the buyer’s account.
Article 10 Debt collection charges
If the buyer or any of its affiliates 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 11 Liability
- In the event that, in the seller’s opinion, a complaint by the buyer that goods do not conform with the warranty in article 12 is justified, the seller shall, to the extent possible and at its sole discretion and costs, either replace the goods with conforming goods or reimburse the buyer's invoice costs for the non-conforming 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 it 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.
- THE LIABILITY OF THE SELLER, ITS AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUCCESSORS, ASSIGNS, AND CONTRACTORS (COLLECTIVELY, THE SELLER PARTIES) FOR ANY AND ALL LOSSES AND DAMAGES TO BUYER OF ANY TYPE RESULTING FROM ANY CAUSE WHATSOEVER INCLUDING NEGLIGENCE, GROSS NEGLIGENCE, RECKLESSNESS OR ALLEGED DEFECTIVE GOODS, IRRESPECTIVE OF WHETHER SUCH DEFECTS ARE DISCOVERABLE OR LATENT, SHALL IN NO EVENT EXCEED THE PURCHASE PRICE OF THE PARTICULAR GOODS WITH RESPECT TO WHICH SUCH DAMAGES ARE CLAIMED. MOREOVER, IN NO EVENT SHALL THE SELLER PARTIES BE LIABLE FOR ANY LOST PROFITS OR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES. SHOULD ANY PORTION OF THIS LIMITATION OF LIABILITY BE FOUND TO BE UNENFORCEABLE, THE REMAINING PORTION SHALL BE ENFORCED TO THE MAXIMUM EXTENT POSSIBLE.
- The seller shall furthermore in any event not be liable for damage caused by an alleged delay in the delivery of the goods.
- Subject to the shorter periods stated in article 14, 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 warrants to the best of its knowledge that the goods to be delivered by the seller have been labelled as required by applicable law and conform to their respective label descriptions. No warranty applies to any other product specifications, including, without limitation, the Euroseeds product specifications for vegetable precision seeds. THE SELLER MAKES NO REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE GOODS, WHETHER AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR ANY OTHER MATTER. FOR THE AVOIDANCE OF DOUBT, THERE ARE NO WARRANTIES OR CONDITIONS WHICH EXTEND BEYOND THOSE DESCRIBED ON THE FACE OF THESE TERMS AND CONDITIONS. SHOULD ANY PORTION OF THIS DISCLAIMER OF WARRANTIES AND CONDITIONS BE FOUND TO BE UNENFORCEABLE, THE REMAINING PORTION SHALL BE ENFORCED TO THE MAXIMUM EXTENT POSSIBLE. THE BUYER EXPLICITLY AGREES THAT THE GOODS ARE SOLD AS IS.
- All data with regard to quality and health provided by the seller in writing are exclusively based on reproducible tests performed on representative samples. 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 buyer expressly acknowledges that the result obtained by the buyer, including but not limited to the occurrence of diseases and pests which were not detected by the seller on or in the delivered goods at the time of the sale, depends amongst others on the location, cultivation measures and the manner of cultivation, for example the sowing medium used, soil conditions and/or the climatic circumstances.
- The warranty in article 12.1 will become void and of no further force or effect if the buyer carries out processes on the goods or causes processes to be carried out on them (including, without limitation, the seed treatment referenced in article 13), 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 warrant 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.
- The buyer explicitly acknowledges that the goods delivered by the seller are not suitable to be used for food, feed and sprouting purposes and should not be used for these purposes.
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 warranty 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 case the correct goods have not been delivered and/or the agreed quantity has not 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 have to be set out in such a manner that the seller or a third party can verify them. The batch, delivery and invoice details have to be specified. The buyer should also indicate under which circumstances the goods have been used and, in case of permitted resale, to whom the goods have been resold. In the event that any complaint is not reported to the seller in writing within the stated period, the complaint will be waived and forfeited and the buyer will lose all rights to obtain any form of recovery, including damages.
- In case a dispute between the parties about germination, trueness to type, varietal purity, technical purity or health has not been resolved within 30 days, an assessment may be performed at the request of the buyer and/or the seller by an ISTA approved independent party, 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 at the seller’s premises. 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. Submitting a complaint does not give the buyer any right to suspend payment of the concerned invoice.
Article 15 Indemnification
- The buyer agrees to indemnify and hold harmless the seller parties against any and all claims, damages, and liabilities whatsoever asserted by and person or entity resulting directly or indirectly from (a) any breach of these terms and conditions or applicable law, (b) the actions of any of the buyer's employees, representatives, or agents, and (c) the 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. The buyer shall submit such insurance to the seller for its approval.
Article 16 Advice for cultural practices, variety descriptions, recommendations
- Cultural advice from the seller is for informational purposes only. Cultural advice, descriptions, recommendations and illustrations in whatever form are based as precisely as reasonably possible on experiences in trials and in practice. However, the seller shall not in any event be liable 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: is when a plant is not subject to attack or infection by a specified pest.
- Resistance: is the ability of a plant variety to restrict the growth and/or development of a specified pest and/or the damage it causes when compared to susceptible plant varieties under similar environmental conditions and pest pressure. Resistant varieties may exhibit some disease symptoms or damage under heavy pest pressure.
- Two levels of resistance are defined:
- High resistance (HR): plant varieties that highly restrict the growth and/or development of the specified pest and/or the damage it causes under normal pest pressure when compared to susceptible varieties. These plant varieties may, however, exhibit some symptoms or damage under heavy pest pressure.
- Intermediate resistance (IR): plant varieties that restrict the growth and/or development of the specified pest and/or the damage it causes, but may exhibit a greater range of symptoms or damage compared to high 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 pressure.
- Susceptibility: is the inability of a plant variety to restrict the growth and/or development of a specified pest.
- 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 pressure.
- Two levels of resistance are defined:
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: an act of God or any other cause beyond a party's reasonable control, including fires, riots, acts of war, acts or orders, regulations, delays, shutdowns of governments, acts of terrorism, accident, explosion, flood, storm, acts of the other party, failures or fluctuations in electrical power, heat, light, air conditioning or telecommunications equipment, disease, outbreak, epidemic or public health emergency, strikes in other companies than that of the seller, wildcat 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, provided that the effects of the force majeure could not have been prevented by reasonable precautions (including proper planning and execution of a disaster recovery plan) or circumvented through the use of alternate sources, work-around plans or other means.
- 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 or compensation to the buyer.
- The seller will not be liable for any delay, non-delivery, or cancellation caused by force majeure.
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 are (a) delivered by the seller to an affiliate of the buyer or third party (including, without limitation, processors or plant raisers) on the buyer's behalf or (b) sold or otherwise provided to an affiliate of the buyer or third party by the buyer, the buyer must impose the stipulation in article 18.1 above on such affiliate or third party on penalty of damages.
- The buyer is under the obligation to allow the seller, or anyone appointed by the seller to perform checks on behalf of the seller, direct access to 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 matters relevant to these terms and conditions.
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.
- If the goods delivered are sold or otherwise provided to a third party, the buyer must impose this stipulation to that third party on penalty of damages.
Article 20 Severability
If any portion of these terms and condition is held invalid or unenforceable, the rest of the terms and conditions continues in full force and effect.
Article 21 Settlement of disputes
- "Disputes" means all unresolved claims, counterclaims, disputes, controversies, disagreements or other matters in question between the parties arising out of or relating to the parties' agreement or to these terms and conditions.
- In the event of any Dispute arising out of or relating to agreements to which these terms and conditions apply, each party shall appoint a senior executive with authority to resolve and settle the Dispute. The senior executives shall attempt to resolve and settle the Dispute, which attempt shall be without prejudice to any other rights or remedies which the parties may have. When a Dispute has not been resolved through negotiation, the Dispute shall be resolved by arbitration as set forth below unless otherwise required by applicable law, in which case the parties shall follow the dispute resolution mechanism required by applicable law.
- When the parties are unable to resolve any Dispute through negotiation, the Dispute shall be finally settled under the Rules of Arbitration (the “Rules”) of the International Chamber of Commerce (“ICC”) by one (1) arbitrator nominated by the parties. If either party fails to nominate an arbitrator within thirty (30) days after the filing of the Dispute with the ICC, such arbitrator shall be appointed in the manner prescribed by the Rules. An arbitration proceeding hereunder shall be conducted in Toronto, Ontario for sales by RZ Canada and in or around Monterey County, California for sales by RZ USA, and shall be conducted in the English language. The decision or award of the arbitrator shall be in writing and is final and binding on both parties. The arbitrator shall award the prevailing party its lawyers’ fees and costs, arbitration administrative fees, panel member fees and costs, and any other costs associated with the arbitration, the enforcement of any arbitration award and the costs and lawyers’s fees involved in obtaining specific performance of an award; provided, however, that if the claims or defenses are granted in part and rejected in part, the arbitrator shall proportionately allocate between the parties those arbitration expenses in accordance with the outcomes; provided, further, that the lawyers’ fees and costs of enforcing a specific performance arbitral award shall always be paid by the non-enforcing party, unless the applicable action was determined to be without merit by final, non-appealable decision. The arbitrator may only award damages as provided for under the terms of this Agreement and in no event may lost profits, punitive, indirect, consequential and special damages be awarded. In the event of any conflict between the Rules and any provision of this Agreement, this Agreement shall govern.
Article 22 Applicable law
For sales by RZ USA, all agreements between the seller and the buyer are subject to the internal laws of the State of California, USA, excluding any conflicts of law rules (whether of the State of California, USA or any other jurisdiction) that may result in the application of the laws of another jurisdiction. For sales by RZ Canada, all agreements between the seller and the buyer are subject to the internal laws of the Province of Ontario, excluding any conflicts of law rules (whether of the Province of Ontario or any other jurisdiction) that may result in the application of the laws of another jurisdiction. The applicability of the "United Nations Convention on Contracts for the International Sale of Goods" (Vienna Sales Convention) is expressly excluded.
Article 23 Amendment of terms and conditions
These terms and conditions may be amended by the seller from time to time at its own discretion, without giving prior written notice to the buyer. The seller shall use commercially reasonable efforts to publish the latest version of these terms and conditions on its website(s) and a copy of the latest version of these terms and conditions can be requested from the seller at any time.
Article 24 Data Protection
The seller attaches great importance to the protection and safety of the buyer’s personal data. All the relevant information is included in seller’s Privacy Statement as amended from time to time.
Additional conditions for the sale of seeds per square meter to greenhouse growers
Article 25 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 26 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 27 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 26 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 provided the buyer imposes the following obligations to that plant raiser on penalty of damages:
- 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;
- the plant raiser delivers all the remaining seeds and all young plants that were grown out of the seeds to the buyer.
General Terms and Conditions of Sale and Delivery of Rijk Zwaan USA Inc. and Rijk Zwaan Canada Ltd., version October 2022.