General Terms and Conditions of Sale and Delivery of Broer B.V., the Netherlands
Whose registered office is at Kleiakker 1, 1619 PD Andijk, the Netherlands. These General Terms and Conditions of Sale and Delivery are deposited at the Chamber of Commerce in Alkmaar, the Netherlands (registration number 36038258).
Article 1. Application of These General Terms and Conditions
1. These General Terms and Conditions apply to all offers and all agreements made between Broer B.V., hereinafter to be called the Seller, and the Buyer, except in so far as expressly provided otherwise in writing.
2. The application of any terms and conditions of the Buyer is expressly rejected.
Article 2. Definitions
1. Product: seeds and/or planting material and/or agreed services.
2. Processing: the treatment of the product, although not exclusively, to improve the sowability and emergence and/or the protection against (spread of) pests and diseases.
Article 3. Offers and Prices
1. All offers made by the Seller are without engagement and can be withdrawn at any time. The prices specified in an offer are exclusive of VAT.
2. Offers can only be accepted in writing; the Seller nevertheless reserves the right to treat a verbal acceptance as if it were given in writing.
3. If the Buyer accepts an offer, the Seller nevertheless reserves the right to withdraw the offer within 3 working days of acceptance (either verbally or in writing), in which case no agreement is concluded between the parties.
4. Verbal offers automatically expire if the Buyer does not accept them in writing within 7 days.
5. Written offers automatically expire if not accepted by the Buyer in writing within 30 days.
6. The Seller reserves the right to change its 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. Crop and Processing Reservation
1. All deliveries are subject to the customary crop and processing reservation. If the Seller invokes the crop and processing reservation, the Seller is not obliged to supply, but will, if possible, supply pro rata to the quantity ordered or the nearest alternative.
2. The Buyer is not entitled to damages if the Seller invokes this reservation.
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 will deliver the next highest quantity.
2. The Seller will always act to the best of its ability in fulfilling its 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 part shipments of the products sold. If the products are delivered in part shipments, the Seller has the right to invoice each shipment separately.
5. Carriage takes place Ex Works (EXW) of the Seller in accordance with the Incoterms 2010.
6. The Seller undertakes to deliver within a reasonable period, following the conclusion of the purchase agreement.
7. An agreed delivery period will not be binding. In the event of late delivery, the Buyer must give the Seller notice of default in writing and grant a reasonable period in which the Seller may fulfil the agreement.
8. A Buyer must specify in writing, upon placing orders and at the first request of the Seller, what data, specifications and documents are required pursuant to the regulations of the country in which the delivery is to be made, such as those relating to invoices, phytosanitary certificates, international certificates and other import documents.
9. The Seller reserves the right to refuse orders with a value of less than EUR 75, or to charge an additional fee of EUR 10.
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 (including payment of any extrajudicial 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 payment 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. The Seller will retain title to the products delivered 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 its 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 retention of title from its own buyers.
3. The Buyer is not permitted to pledge or otherwise encumber 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, in which case the Buyer will owe interest at a rate of 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 payment, 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 Paragraph 1 apply accordingly.
Article 9. Collection Costs
If the Buyer fails to perform one or more of its payment obligations, all the collection costs both in and out of court will be for the Buyer’s account.
Article 10. Force Majeure
1. Force majeure means circumstances that make performance of the obligation impossible or unreasonably complicated and cannot be attributed to the Seller. Such circumstances can include strikes, fire, extreme climatic conditions, government measures, pests and diseases together with defects in the materials supplied to the Seller.
2. The Seller will inform the Buyer as soon as possible if it is unable to deliver or to deliver in time due to force majeure.
3. If the 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 11. Liability
1. The Seller does not accept any liability for damage resulting from a shortcoming of the product(s) delivered, except in the case of intent and/or gross negligence on the part of the Seller and/or its employees.
2. The Seller will not be required to pay any damages in the case of force majeure as described in Article 10.
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 8, if as a result thereof the order cannot be delivered (on time).
4. The Buyer is required to limit as much as possible the damage with regard to the products delivered about which a complaint is filed with the Seller.
5. The Seller does not accept any liability for damage caused by seed and planting 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 products in question; the Seller will in no event be liable for any form of consequential damage.
Article 12. 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 product delivered does not comply with the product specifications, the Buyer will be informed. The Seller furthermore does not guarantee that the product will comply with the purpose given to them by the Buyer.
2. All information on quality provided by the Seller will exclusively be based on reproducible tests. The supplied quality information merely indicates the result as achieved by the Seller at the time when the test was performed, subject to the conditions under which such 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 factors, on the location, climatic conditions and cultural practices.
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 13. Defects; complaint terms
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 delivered products corresponds with the agreement;
• whether the delivered products 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, packing list and/or invoice details.
3. The Buyer must report any non-visible defects to the Seller in writing within 3 working days after discovery, specifying the lot number, packing list and/or invoice details.
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 its buyers. If the Buyer does not file a complaint within the aforesaid period, the complaint will not be dealt with and rights will expire.
5. In the event of a continuing dispute between the parties regarding the germination, trueness to type, varietal purity, technical purity and health, either party may request that an inspection be performed by Naktuinbouw (Netherlands Inspection Service for Horticulture), whose registered office is in Roelofarendsveen, the Netherlands. The cost of such inspection will be for the account of the party found to be most at fault. This request must be submitted within 6 months of the first report of the problem by the Buyer. The inspection will be carried out on the basis of a sample taken at the Seller by Naktuinbouw and retained by them. The result of the 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 14. Provision of Information
1. Information provided by the Seller in any form whatsoever is without commitment. Descriptions, recommendations and illustrations in brochures and leaflets 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 following meaning is given to the terms below:
• 'Immunity': not subject to attack or infection by a specified pest or pathogen;
• '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 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 or pathogen pressure.
• 'Susceptibility': the inability of a plant variety to restrict the growth and development of a specified pest or pathogen.
Article 15. Reproduction and/or Multiplication Reservation
1. The Buyer is not entitled to use the delivered products and/or derived components and/or derived plant material for further multiplication and/or reproduction of parent material. The Buyer is also not entitled with respect to the delivered products and/or derived components and/or derived plant material
i) to treat and/or use these for multiplication,
ii) to offer them for sale,
iii) to sell them,
iv) to import or export them and/or
v) to keep them in stock for any of these or similar purposes.
This prohibition includes all varieties derived from a variety delivered by the Seller.
2. In the case of the resale of the delivered products, the Buyer shall impose the above clause on its buyer, under penalty of a fine for each infringement. The amount of the fine will not be less than the benefit obtained by the buyer.
3. The Buyer shall grant the holder of plant breeders’ rights, or a party acting on its behalf, direct access to its business, including in particular the greenhouses, to enable the Seller to carry out an inspection in the event of suspicions that the parent material is being multiplied and/or reproduced. Business in this sense also includes all activities performed by third parties on behalf of the Buyer. The Buyer shall at the Seller’s request grant immediate access to all administrative records with regard to the relevant parent material.
Article 16. Use of Trademarks and Signs
The Buyer may not use trademarks and signs that are used by the Seller to distinguish its 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 17. Conversion
1. If any 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 invalidated provision. The parties must, if necessary, enter into reasonable consultations on 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, all disputes will be settled by the civil court that is competent in first instance in the place where the Seller has its registered office, unless another court is competent pursuant to the applicable mandatory rules of the law applicable by virtue of Article 19.
2. In the event of a dispute the parties will, however, first try to reach an amicable 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 in which the Seller has its registered office.
2. The ‘International Seed Federation Rules and Usages 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 General Terms and Conditions.
3. If the Seller and the Buyer do not have their registered offices in the same country, the ‘United Nations Convention on the International Sales 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 country in which the Seller is established.