General Terms and Conditions of Sale

Drawn up by Nunhems Netherlands BV, Voort 6, 6083 AC Nunhem, Municipality of Leudal, the Netherlands and deposited on 31 May 2010 at the Chamber of Commerce of Limburg, the Netherlands, (registration number 13014340). These terms and conditions replace all previously published issues.

Article 1. Applicability of these General Terms and Conditions
These General Terms and Conditions apply to all offers and all agreements between Nunhems Netherlands BV, hereinafter to be called the “Seller”, and a buyer (hereinafter to be called “Buyer”), except in so far as expressly otherwise provided in writing. The applicability of any general terms and conditions of the Buyer is expressly rejected.

Article 2. Offers and Prices

The offers made by the Seller are without commitment. An offer without commitment may be withdrawn up to three working days after receipt of its acceptance. The prices specified in an offer are exclusive of value added tax (hereinafter “VAT”), or equivalent tax types (e.g. GST, sales tax or turnover tax).
The Seller reserves the right to change its prices periodically. Each new price listing will invalidate the preceding one with regard to all orders placed after that new price listing.
All references by the Seller to product specifications correspond to the most recent product specifications as published by the Seller.
Products are packed by the Seller in its own packaging. Costs of packaging are at the Buyer’s expense.

Article 3. Harvesting and Processing Reservation

All deliveries are subject to the customary harvesting and processing reservation. If the Seller invokes the harvesting or processing reservation, the Seller is not obliged to supply, but will, if possible, try to supply pro rata to the quantity ordered or equivalent alternatives.
The Buyer is not entitled to damages if the Seller invokes this reservation.

Article 4. Ordering and Delivery

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 nearest higher quantity.
The Seller will always act to the best of its ability in fulfilling its obligation to deliver.
Sound fulfilment of the Seller’s obligation to deliver also includes delivery with a minor difference in size, packaging, number or weight.
The Seller is permitted to deliver sold goods in parts. If the goods are delivered in parts, the Seller has the right to invoice each part separately.
The Incoterms applicable at the date of conclusion of the agreement will apply to the agreement.
International shipments will be delivered EXW Place of load, ex Incoterms 2000, unless agreed upon otherwise in writing.
Domestic shipments will be delivered DDU Place of unload, ex Incoterms 2000, unless agreed upon otherwise in writing.
The moment the Seller has handed the seed over to the transport company, the Seller is no longer liable for late deliveries, non-deliveries, other transport problems or transport damage.
The Seller undertakes to deliver within a reasonable period, in accordance with the sowing or planting season after the purchase agreement was concluded.
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 it a reasonable period in which to perform the agreement.
The Buyer must specify in writing, upon placing its order or at the Seller’s first request, 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:
- invoicing;
- phytosanitary requirements;
- international certificates; and
- other import documents or import statements.
Due to the high quality standards, delivered seeds can only be returned in their original, undamaged packing within 15 days after invoice date. A credit note shall be issued at 75% of the invoiced amount, VAT or sales/turnover tax excluded. Primed seed and seed treated with insecticides cannot be returned and shall thus not be credited.

Article 5. Retention of Title

The title to goods delivered by Seller will remain with Seller, until Buyer has fully paid all he owes to Seller because of goods and services delivered or still to be delivered by Seller to Buyer under a contract as well as because of failure by Buyer to perform properly under such a contract.
Goods delivered by the Seller to which the retention of title pursuant to Article 5 sub 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 its buyers.
The Buyer is not permitted to pledge the goods or to create any other right with regard to the goods.

Article 6. Payment

Payment must be received by the Seller within 30 days after the invoice date. At the end of that period, the Buyer will automatically and without formal notice be in default; the Buyer will owe interest at a rate of 1% a month or the statutory interest for overdue payment in the Buyer’s country, whichever is higher, on the outstanding amount as from the date of default.
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.
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 6 sub 1 apply accordingly.
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 banking institution in Seller’s country, with regard to the performance by the Buyer.
Notwithstanding Article 6 sub 1 above, Seller reserves the right, in its sole discretion, to require payment (or appropriate payment guarantees) prior to or upon delivery of the Products to the Buyer.
Under no circumstances is the Buyer authorized to delay any payments due or to deduct any amount from Sellers' invoices due, whether to offset its claims for alleged defects in the shipment or for any other reason, without the written and prior agreement of the Seller.
If Seller has a claim against a company related to Buyer - e.g. a parent, daughter or sister company - and that company is in a state of bankruptcy or liquidation or has been granted suspension of payment, then Seller may set off that claim against any claim that Buyer may have against Seller, even if Seller’s claim may not have become payable at that time.

Article 7. Collection Costs
If the Buyer fails to perform one or more of its obligations, all the costs of obtaining payment in and out of court will be for Buyer’s account.

Article 8. Liability

The Seller is not liable for any damage resulting from a shortcoming in the performance rendered, except in the case of intent and/or gross negligence on the part of the Seller and/or its employee.
The Buyer is required to limit as much as possible the damage with regard to the performances about which he files a complaint with the Seller.
If the Seller is liable on the basis of one or more Conditions, such liability will be limited to the invoice value of the performances. The Seller will in no event be liable for any form of indirect, special, incidental or consequential damage, or loss of profit.

Article 9. Use and Guarantee

The Seller guarantees that the performances rendered will comply to the best of its ability with the relevant product specifications. However, the product specifications will not apply as a guarantee. If the goods 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 they are put by the Buyer.
If the Seller has specified a germination capacity, it is based only on reproducible laboratory tests. No direct relationship may be assumed between the specified germination capacity and the emergence of the seed at the Buyer. This specified germination capacity merely indicates the germination capacity at the time when and in the circumstances in which the test was performed. Emergence depends, among other things, on the location, cultivation measures and climate conditions at the Buyer.
Any and all guarantees on the part of the Seller will lapse if the Buyer processes the goods or has them processed, repackages the goods or has them repackaged, or uses the goods incorrectly.

Article 10. Defects; Complaint Periods

The Buyer must inspect the goods purchased upon delivery, or as soon as possible after delivery. In doing so the Buyer must check whether the goods delivered comply with the agreement, i.e.:
- whether the correct goods have been delivered;
- whether the quantity of the goods delivered corresponds with the agreement;
- whether the goods delivered meet the agreed quality requirements or—if none were agreed—the requirements that may be stipulated for normal use and/or trading purposes.
If visible defects or deficiencies are established, the Buyer must inform the Seller accordingly in writing within five working days after delivery, specifying the batch, delivery note and/or invoice details.
The Buyer must report any invisible defects to the Seller in writing within five working days after discovery, specifying the batch, delivery note and/or invoice details.
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 goods and, in the event of resale of the goods, 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 its rights will expire.
In the event of a permanent dispute between the parties concerning the germination capacity, varietal trueness, varietal purity or technical purity and health, a (re)inspection may be performed by Naktuinbouw (Netherlands Inspection Service for Horticulture), having its registered office in Roelofarendsveen, the Netherlands, for the account of the unsuccessful party. The inspection will be performed on the basis of a sample taken at Seller by Naktuinbouw and retained by them.
The outcome of this (re)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 15.
In addition to Article 10 sub 3, the Buyer shall report complaints about failures and deficiencies within the date per registered mail addressed to the Seller.

Article 11. Provision of Information
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 in the cultivated product. The Buyer itself must determine whether the goods are suitable for the intended growth and/or can be used in the local conditions.

Article 12. Use of Trademarks, Logo’s and Signs

The Buyer may not use trademarks, logo’s and signs that are used by the Seller to distinguish its products from those of other legal entities/companies, or use trademarks, logo’s and signs that are not clearly distinguishable. An exception applies to the trade in products in the original packaging of the Seller with the trademarks, logo’s and signs placed on them by the Seller.
Notwithstanding Article 12 sub 1, all intellectual property rights (including but not limited to copyrights, trademarks, logo’s, patents, trade names, brands, confidential know-how) world-wide with regard to the Products and other products of Seller, shall remain the property of Seller or the relevant affiliate in the Sellers’ group of companies.

Article 13. Breeders’ Rights

Seed from varieties protected by breeders’ rights, including PVP rights, applied for or granted in the European Community and/or any other country, or by a contractual perpetual covenant, may not be used for propagation or trading without the Seller’s prior written permission. Conditions may be attached to such permission by way of a perpetual covenant, relating to production or reproduction (propagation), conditioning for the purposes of propagation, offering for sale, selling or otherwise introducing to the market; export; import and storage for one of the purposes mentioned above.
In accordance with Article 13 sub 1 above the relevant seed supplied by the Seller may therefore only be used by the Buyer for the cultivation of end products and/or other finished products on the Buyer’s premises.
The Buyer is obliged to allow the Seller - or a third party that carries out inspections on behalf of the Seller – direct access to the business of the Buyer (including amongst others and in particular to the greenhouses of its business) for inspections. The Buyer shall upon request also allow access to records and accounts that are relevant to the aforementioned inspections. The Seller will inform the Buyer in good time of its plans to visit. The Buyer shall impose the aforementioned obligations to its own customers.
The finished product, derived from the seed supplied to the Buyer, may only be sold by the Buyer under the variety name registered by the Seller.
If the Buyer finds a mutant in the protected variety, he shall immediately inform the party protected by breeders’ rights of this by registered post.
Where the protected party so requests in writing, the Buyer will provide that party with test material from the mutant within two months of receiving the request. The Buyer is aware that anyone finding a mutant in the protected variety requires the permission of the grower(s) of the ‘parent variety’ to exploit the mutant. The Buyer is aware in particular that the finder of a mutant requires the permission of the party protected by breeders’ rights relating to the ‘parent variety’ in order to carry out any of the following acts: production or reproduction (propagation), conditioning for the purposes of propagation, offering for sale, selling or otherwise introducing to the market; export; import; storage for one of the purposes mentioned above.

Article 14. Force Majeure

Force majeure means circumstances that stand in the way of fulfilling the obligation and cannot be attributed to the Seller if and in so far as these circumstances make performance impossible or unreasonably complicated. These circumstances - include without limitation - extreme weather conditions, natural disasters, acts, regulations or law of any Government, wars or civil commotions, destruction of production facilities or materials by fire, epidemics, failure of public utilities or common carrier, strikes at companies other than the Seller’s company, unofficial strikes or political strikes at the Seller’s company, a general lack of the necessary raw materials and other goods or services required to render the agreed performance, unforeseeable delays at sub-suppliers or other third parties on which the Seller is dependent, and general transport problems.
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.
If the event of force majeure lasts longer than two months, both parties will be entitled to dissolve the agreement. In that case neither party will be required to pay any damages to the other party.

Article 15. Settlement of Disputes

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 its registered office, unless another court is competent pursuant to the applicable mandatory rules of the law chosen in Article 17.
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.
The Seller will at all times have the right to summon the Buyer before the court that is competent by law or pursuant to the applicable international convention.
If a provision of these General Terms and Conditions is invalid, 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.
In that case the other provisions of the General Terms and Conditions will remain fully valid in so far as possible.

Article 16. GMO Disclaimer
The seeds of varieties which are supplied to Buyer are varieties bred from parent components which have not been genetically modified. The methods used in the development and conservation of these varieties are aimed at avoiding the presence of off-types, including genetically modified (GM) organisms. Seed production has been carried out in accordance with production rules in the country where production took place, including stipulated isolation distances. However, in open fields there is free circulation of pollen. Since it cannot be excluded that in seed production areas the cultivation of approved GM plants by others takes place, it is not possible to prevent totally the adventitious presence of GM material and to guarantee that the seed lots comprising this delivery are free from any traces derived from GM plants.

Article 17. Applicable Law

All agreements between the Seller and the Buyer are governed by the law of the country where the Seller has its registered office.
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.

General Terms and Conditions of Sale

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