Terms & Conditions of Sale

Conditions of Sale

General Terms and Conditions of Sale VDB-ProSeeds

Article 1 - Definitions

1. In these Terms:

Agreement

shall mean the contract for the sale and purchase of the Products

Buyer

shall mean the natural or legal person entering into an agreement with VDB-ProSeeds, for the purchase of Products.

VDB-ProSeeds

shall mean VDB-ProSeeds v.o.f., (registered in the Netherlands, Chamber of Commerce under number 58303669), whose registered office is at Geestweg 20, 2671 EC, Naaldwijk, the Netherlands.

Incoterms 2000

shall mean the Incoterms 2000 drawn up by the International Chamber of Commerce in Paris (ICC).

ISTA

shall mean the International Seed Testing Association

NIAB

shall mean the National Institute for Agricultural Botany

Offer

shall mean the specific sale conditions offered by VDB-ProSeeds to a Buyer.

Order Confirmation

shall mean written confirmation of acceptance by VDB-ProSeeds of the purchase order placed by the Buyer.

Parties

shall mean VDB-ProSeeds and the Buyer jointly.

Party

shall mean either VDB-ProSeeds or the Buyer.

Processing

shall mean the treatment of the Product including, without limitation, the treatment for the improvement of the sowability, germination, plant quality and/or for the prevention of pests and/or diseases.

Product Specifications

shall mean the information provided in Schedule 1.

Products

shall mean seeds and planting material delivered by VDB-ProSeeds to the Buyer.

Resistance

shall mean the information and terminology provided in Schedule 2.

Terms

shall mean the standard terms of sale set out in this document and (unless the context otherwise requires) includes any special terms agreed in writing between VDB-ProSeeds and the Buyer;

Trade dress

shall mean the overall image of the business of VDB-ProSeeds

Writing

and any similar expression, shall include facsimile transmission but not electronic mail or other forms of electronic communication.

2. Unless the context requires otherwise, the singular includes the plural and vice versa

3. The headings in these terms are for convenience only and shall not affect their interpretation

4. Reference in these Terms to a provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time

Article 2. Applicability of These General Terms and Conditions

1. No variation to these Terms shall be binding unless agreed in writing between the authorized representatives of the Buyer and VDB-ProSeeds.

2. The applicability of the Buyer's general terms and conditions are hereby explicitly excluded.

3. The applicability of any Reseller's general terms and conditions are hereby explicitly excluded. Resellers are required to apply terms and conditions of VDB-ProSeeds

4. The Product Specifications and Resistance Terminology, which have been attached hereto as Schedule 1 and 2 respectively, form an integral part of these Terms.

5. If any provision of the Agreement is held by a court or other competent authority to be invalid of unenforceable in whole or in part the validity of the other provisions of the Agreement and the remainder of the provision in question shall remain unaffected

Article 3. Purchase Order and Order Confirmation

1. VDB-ProSeeds agrees to sell the Product to the Buyer at VDB-ProSeeds' quoted price or, where no price has been quoted, the price listed in VDB-ProSeeds' published price list current at the date of acceptance of the order. All prices quoted are valid for 30 days only or until earlier acceptance by the Buyer after which time they may be altered by VDB-ProSeeds without giving notice to the Buyer.

2. Offers made by VDB-ProSeeds are without commitment and will lapse in any case after five working days.

3. An Agreement shall be considered to be made between VDB-ProSeeds and the Buyer upon Order Confirmation or upon acceptance of an Offer. No rights or obligations shall therefore arise between the Parties until the Order Confirmation has been sent or an Offer has been accepted.

4. All purchase orders are subject to seed availability and may be prorated by VDB-ProSeeds. The Buyer shall not be entitled to damages if VDB-ProSeeds elects to prorate any purchase order.

5. VDB-ProSeeds shall always perform its delivery obligations to the best of its ability. Nevertheless, VDB-ProSeeds shall be entitled to deviate from the purchase order placed by the Buyer with respect to size, packaging, quantity or weight.

6. When placing an order, the Buyer shall report what information, specifications and documents are required under the rules and regulations of the country of delivery. The Buyer shall be responsible for informing VDB-ProSeeds of any formalities that must be complied with to enable importation. The Buyer shall also provide VDB-ProSeeds with information on any required certificates, phytosanitary matters, import documents or invoices.

7. VDB-ProSeeds cannot be held liable for delays or non-delivery of an order due to the Buyer's failure to comply with the abovementioned obligations. The Buyer shall be liable for any loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by VDB-ProSeeds due to incorrect or late information.

Article 4. Prices

1. All prices quoted by VDB-ProSeeds are:
* in EURO,
* exclusive of costs of transport and insurance,
* exclusive of VAT and other government levies.

2. VDB-ProSeeds shall invoice the Buyer for the costs of Products, plus any other costs such as costs of transport, insurance, VAT, etc.

3. Only in case of VDB-ProSeeds providing seed samples:

- Samples provided by VDB-ProSeeds have a standard size of 1x 100 seeds per variety;
- Sample can be ordered online using the discount code „SAMPLE" which entitles you to a one time discount of 50%;
- The amount paid for the sample will be deducted on the next order;
- The sample size should not not exceed more than 10% of the total order of the same variety in seeds;
- Amounts paid for samples where no order is placed will not be reimbursed.

Article 5. Cancellation

If a purchase order is cancelled after an Agreement has been made, the Buyer shall in principle not be required to pay any compensation without prejudice to VDB-ProSeeds's right to demand compensation in full.

Article 6. Delivery

1. VDB-ProSeeds shall deliver the purchased Products to the Buyer within a reasonable period of time after Order Confirmation and in accordance with the planting season.

2. Delivery times agreed by the Parties serve as an indication but should not be regarded as firm dates. In the event of late delivery, the Buyer shall provide VDB-ProSeeds with written notice thereof and shall allow VDB-ProSeeds a further reasonable period of time to deliver the Products. In no event shall VDB-ProSeeds be liable for damages due to late delivery nor shall Buyer be entitled to end the Agreement made by the Parties.

3. Delivery by VDB-ProSeeds takes place carriage paid to the agreed destination (CPT) Incoterms 2000, after which the Product shall be at the Buyer's own risk and account. The Buyer hereby authorises VDB-ProSeeds to select the carrier and to charge the cost of transport to the Buyer.

4. VDB-ProSeeds shall be allowed to make partial deliveries and to invoice each delivery separately.

Article 7. Payment

1. The Buyer shall arrange for payment in EURO within thirty days from the date of invoice by transfer into a bank account specified by VDB-ProSeeds.

2. The time for payment shall be of the essence of the contract.

3. The Buyer does not have the right to suspend payment or make deductions or set-offs.

4. If on the thirty-first day after invoice VDB-ProSeeds has not received payment in full the Buyer shall be in default without any notice being required.

5. In case of payment in instalments, the Buyer shall be in default without any notice being required in the event of late payment of any installment and the remaining installments shall become immediately payable.

6. If the Buyer defaults in the payment when due of any sums payable by it under an Agreement, the Buyer's liability shall be increased to include interest on such sum including VAT from the due date until the date of actual payment (both before and after judgment at a rate of one per cent per calendar month. All such interest shall be calculated on the basis of the actual number of days elapsed, over a 365 day year and compounded at monthly rates.

7. Payments made by the Buyer shall first serve to reduce the outstanding contractual interest and then to reduce the oldest outstanding invoice.

8. If the Buyer makes a composition or voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a company) enters administration or goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction), or an encumbrancer takes possession, or a Receiver is appointed, of any of the property or assets of the Buyer; or the Buyer ceases, or threatens to cease, to carry on business; or VDB-ProSeeds reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly, then, without limiting any other right or remedy available to VDB-ProSeeds, VDB-ProSeeds may cancel the Agreement or suspend any further deliveries under the Agreement without any liability to the Buyer, and if the products have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.

9. VDB-ProSeeds' office in Naaldwijk, The Netherlands shall be regarded as the place of payment for all amounts to be paid in relation to the Agreement.

Article 8. Complaints & Refund Policy

1. The Buyer shall inspect the Products upon delivery or as soon as possible thereafter. The Buyer shall determine, in accordance with the Order Confirmation, whether:
* the correct items have been delivered;
* the correct quantities have been delivered;
* the items delivered satisfy all quality requirements expressly agreed to in writing by the Parties.

2. Within fourteen calender days after delivery, Buyer shall notify VDB-ProSeeds in writing of any visible defect or shortcomings. In case of non-visible defects, the written notification should be made within fourteen calender days after discovery of the defect.

3. The written notification shall provide the consignment information (seed lot number, the packing slip and the invoice details) as well as the basis for any complaint in such a manner that VDB-ProSeeds or an outside expert can verify each complaint.

4. In no event shall the Buyer return the Products unless otherwise agreed by VDB-ProSeeds in writing.

5. If VDB-ProSeeds does not receive written notice of a complaint within the applicable time periods, the Buyer shall be deemed to have accepted the Products and the sale shall be final. All claims for damage or loss not made in writing within the applicable time period shall be deemed waived by the Buyer and the Buyer expressly assumes and accepts all liability for such damage or loss.

6. If the Parties are unable to resolve a dispute regarding the quality of the Products, either Party may order an inspection which shall be referred to a single expert (to be agreed upon between the parties) or failing agreement. The expert appointed shall act as an expert and not as an arbitrator, and provided that each party has the opportunity of making representations in writing or in such other form as the expert shall agree, the decision of such expert shall be final and binding on the parties. As a condition of accepting the appointment the cost of the appointment and of the expert's determination may be shared equally or awarded against a single party according to the outcome of the determination reported by the expert.

7. If a complaint is well-founded, VDB-ProSeeds shall have the right to replace the Products in question or, at its discretion, make a refund by crediting the Buyer within 30 calender days for that part of the delivery.

8. In any event, VDB-ProSeeds's liability is limited as provided in clause 12 below.

Article 9. Reservation of Title

1. Notwithstanding delivery and the passing of risk in the Products, or any other provision of these Terms, the property in the Products shall not pass to the Buyer until VDB-ProSeeds has received in cash or cleared funds payment in full of the price for the Products agreed to be sold by VDB-ProSeeds to the Buyer for which payment is then due.

2. Until such time as the property in the Products passes to the Buyer, the Buyer shall hold the Products as VDB-ProSeeds' fiduciary agent and bailee and shall keep the Products separate from those of the Buyer and third parties and properly stored, protected and insured and identified as VDB-ProSeeds' property, but the Buyer may resell or use the Products in the ordinary course of its business.

3. Until such time as the property in the Products passes to the Buyer (and provided the Products are still in existence and have not been resold), VDB-ProSeeds may at any time require the Buyer to deliver up the Products to VDB-ProSeeds and, if the Buyer fails to do so forthwith, enter on any premises of the Buyer or any third party where the Products are stored and repossess the Products.

4. The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Products which remain the property of VDB-ProSeeds, but if the Buyer does so all monies owing by the Buyer to VDB-ProSeeds shall (without limiting any other right or remedy of VDB-ProSeeds) forthwith become due and payable.

Article 10. Force majeure

VDB-ProSeeds shall not be liable to the Buyer or be deemed to be in breach of the Agreement by reason of any delay in performing, or any failure to perform, any of VDB-ProSeeds' obligations in relation to the Products, if the delay or failure was due to any cause beyond VDB-ProSeeds' reasonable control. Without limiting the foregoing, the following shall be regarded as causes beyond VDB-ProSeeds's reasonable control:

1. Act of God, explosion, flood, tempest, fire or accident;

2. War or threat of war, sabotage, insurrection, civil disturbance or requisition;

3. Acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;

4. Import or export regulations or embargos;

5. Strikes, lockouts or any industrial actions or trade disputes (whether involving employees of VDB-ProSeeds or of a third party);

6. Difficulties in obtaining raw materials, labour, fuel, parts or machinery;

7. Power failure or breakdown in machinery;

8. Pests, disease or climatic conditions affecting the Products

Article 11. Product Information, Use and Warranty

1. All illustrations, catalogues and statements provided by or on behalf of VDB-ProSeeds about quality, composition, weight, measurement, treatment in the broadest sense, applications and properties of the Products correspond as closely as possible to VDB-ProSeeds' tests and practical experience.

2. The Buyer acknowledges that any information provided by VDB-ProSeeds in relation to the quality (such as viability, germination, mechanical or genetic purity, seed health) and performance of the Products applies only to the tests done by VDB-ProSeeds, to the specific seed sample used and to the specific conditions under which the tests were done. The Buyer agrees that the abovementioned information does not constitute an express or implied warranty.

3. The results obtained by the Buyer will depend on such factors as the place of cultivation, the conditions prior to and during cultivation, including how the Product are stored, the climate, the soil and crop protection methods used by the Buyer. The Buyer shall be solely responsible for determining the suitability and appropriateness of the use of the Products in the different conditions and/or for the different purposes.

4. VDB-ProSeeds provides all Product information to assist the Buyer and under no circumstances shall VDB-ProSeeds be liable to the Buyer for results deviating from that information. VDB-ProSeeds shall not be held liable for any information provided in relation to Resistances as defined in Schedule 2 and/or Resistances to diseases indicated per Product.

5. VDB-ProSeeds shall not be liable to the Buyer for any Product that has been treated and/or conditioned and/or manipulated in any other manner by the Buyer or by a third party on the Buyer's request.

6. The Buyer acknowledges that Products delivered by VDB-ProSeeds are not fit for human or animal consumption.

Article 12. Limitation of Liability

1. Diseases of plants can be transmitted by the wind, by insects, by animals or by human agencies and may be seed-borne or soil-borne. Although VDB-ProSeeds believes the seed sold in accordance with these Conditions is free from latent defect, it is not a condition of sale nor does VDB-ProSeeds warrant that any seed sold by it is free from defect, nor will VDB-ProSeeds be responsible in any way for the resultant crop.

2. In the event of any seed supplied not complying with the express terms of the contract of sale or any seed proving defective whether in varietal purity or germination or otherwise VDB-ProSeeds will at its option replace the defective seeds free of charge to the Buyer or will refund all payments made to VDB-ProSeeds by the Buyer in respect of the defective seeds and this shall be the limit of VDB-ProSeeds's obligation. All liability is excluded for any loss, or damage arising from the use of any seed supplied and for any consequential loss or damage arising out of such use or any failure in the performance or any defect in any seeds supplied and for any other loss or damage including, without prejudice to the generality hereof, any failure total or partial of the resultant crop since such failure can depend on many natural and others factors beyond VDB-ProSeeds 's control, save for, at VDB-ProSeeds 's option, liability for any such replacement or refund as aforesaid.

3. In accordance with the established custom of the seed trade, any express or implied conditions, statement or warranty, statutory or otherwise not stated in these conditions is also excluded.

4. The above limitations of liability are necessary since:
4.1 the amount of any consequential loss which may arise out of the use of any defective seed would be best known to and/or more readily ascertainable by the Buyer than by VDB-ProSeeds and
4.2 the price of any seeds sold or offered for sale is based upon the foregoing limitations upon the Seller's liability. The price of such seeds would be much greater if a more extensive liability were required to be undertaken.

5. In accepting the seed upon these conditions, the Buyer acknowledges that the limitation of VDB-ProSeeds' liability is fair and reasonable.

Article 13. Intellectual Property Rights and Use of the Products

1. The Buyer agrees that all intellectual property rights relating to the Products shall at all times be and remain absolutely vested in VDB-ProSeeds and the Buyer shall acquire no rights thereto.

2. The Buyer agrees that VDB-ProSeeds has the exclusive right, title and interest in and to VDB-ProSeeds's trademarks, trade names and trade dress (including designs and colour schemes).

3. The Buyer agrees neither to register, nor to have registered, any trademarks, trade names or symbols of VDB-ProSeeds or those which are confusingly similar to those of VDB-ProSeeds.

4. The Buyer may not use VDB-ProSeeds' trademark, trade name and/or trade dress for any purpose unless otherwise approved in writing by VDB-ProSeeds.

5. The Buyer shall not use the Products for any other purpose than growing crops for human or animal consumption.

6. Under no circumstances shall the Buyer use the Products and/or its components and/or its harvestable material in any way for multiplication and/or reproduction of any kind of material.

7. The Buyer agrees to allow and fully cooperate with any inspection by VDB-ProSeeds for the purpose of verifying any possible infringement of VDB-ProSeeds' rights. The Buyer shall allow VDB-ProSeeds or a person or company appointed by VDB-ProSeeds to have direct access to the Buyer's premises including, but not limited to, its greenhouses, administrative and farming activities. The term "activities" shall be understood to include activities carried out by third parties on behalf of the the Buyer.

8. The Buyer shall fully cooperate with VDB-ProSeeds in defending its rights against infringement.

9. The Buyer shall ensure that anyone who handles or in any way deals with any of the products received from the Buyer shall comply with the obligations set out in this clause.

Article 14. Suspension and Dissolution of the Agreement

1. In the event that a Party fails to perform any of its obligations under the Agreement and such failure continues for a period of thirty (30) days after written notice, the other Party shall be authorised to suspend any further performance of the Agreement or to terminate it, without prejudice to its right to claim damages.

2. If the Buyer makes a composition or voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a company) enters administration or goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction), or an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Buyer; or the Buyer ceases, or threatens to cease, to carry on business; or VDB-ProSeeds reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly, then, without limiting any other right or remedy available to VDB-ProSeeds, VDB-ProSeeds may cancel the agreement or suspend any further deliveries under the agreement without any liability to the Buyer, and if the Products have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.

Article 15. Applicable Law

The Agreement shall be governed by the laws of the Netherlands, and the Buyer agrees to submit to the non-exclusive jurisdiction of the Dutch courts.

Article 16. Resolution of Disputes

1. if any dispute arises out of this Agreement, the parties will attempt to settle it by mediation by appointing a single arbitrator, agreed upon by the parties or, if agreement is not reached within 20 business days of a request to do so, nominated on the application of either party by Nauta Dutilh Law firm in Rotterdam.

Schedule 1 - Product Specifications

1. Introduction
Vegetable growing has become a highly specialized and intensive activity. As a result of the ever increasing demand for a better quality, vegetable growers and plant raisers require an improved quality of basic material. The demand for specific seed forms and more information about seed quality has strongly increased to better influence emergence and required number of plants.
Seed is a natural product. The often varying environmental conditions thus influence final results. It is therefore often not possible to give detailed information about seed performance and other seed characteristics.

2. General Definitions

1. 'Normal Seed'
In general normal seed has not been subjected to special processes. It is sold by weight and/or by count, depending on the product. Normal seed complies with the EEC standards.

2. 'Precision'
'Precision' seed has been subjected to additional processes. It is of a uniform size and has high germination capacity. 'Precision' seed is sold by count and complies with the standards as provided in the table below.

3. 'Priming'
Priming is defined as an activation of the germination process in order to break seed dormancy or obtain a faster or more uniform emergence after sowing. Primed seed is sold by count.

4. 'Pill'
Pill is the product of a seed pelleting/coating procedure. Pelleting is defined as the process of changing the seed form by covering it with filling materials with the main purpose to facilitate easier sowing. Also additional ingredients may be added. Pelleted seed is sold by count and complies with the standards as provided in the table below.

5. 'Filmcoat'
Filmcoat is a full covering, usually pigmented layer around the seed. The original seed form remains intact. Additional ingredients may be added. Filmcoat is used for insecticide treatments by VDB-ProSeeds. Filmcoated seeds are sold by count.

6. 'Basiscoat'
Basiscoat is a pigmented layer around the seed. The original seed form and size remain intact. Basiscoat is mainly used for fungicide treatments by VDB-ProSeeds.

7. 'Germination'
The germination figure mentioned is valid from the moment of delivery. Germination figures refer to the ISTA procedures.

9. 'Genetic Purity'
Genetic Purity is defined as the percentage of plants derived from a seed lot that meets the variety description.

Schedule 2 - Resistance

1. Terminology and definitions

a. 'Immunity' means not subject to attack or infection by a specified pest or pathogen.

b. 'Resistance' is 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 of pathogen pressure.
Two levels of resistance are defined:

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.

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 highly resistant varieties. 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.

c. 'Tolerance' the potential ability of a plant variety to resist symptoms of specific specified pest or pathogen, however not proven to be resistant to these.

d. 'Susceptibility' is the inability of a plant variety to restrict the growth and development of a specified pest or pathogen.

2. Information per variety

Resistances in varieties of our crops will be indicated in our product specifications, published on our website. In case a variety is resistant to more than one pathogen, the individual resistance codes will be separately indicated. If in a resistance indication of a certain variety reference is made to certain strains for which the resistance is claimed this means that no resistance is claimed to other strains of the same pathogen.
If, in a resistance indication, no reference is made to strains of the pathogen for which the resistance is claimed, resistance is claimed only to certain not further specified strains of the pathogen and we hereby disclaim any guarantee that the variety will not be infected by the said pathogen.