General Terms and Conditions of Sale and Delivery of Rijk Zwaan Australia Pty Ltd.
Applicable to all offers and agreements.
Article 1 Applicability
By placing its order, the customer accepts each and all of the general terms and conditions of sale and delivery appearing below Conditions of Sale. These Conditions of Sale will apply to all goods sold to the customer and may only be varied or altered by notice in writing signed by a duly authorised representative of Rijk Zwaan Australia Pty. Ltd, hereafter called the seller.
Article 2 Acceptance of order and price
- The seller reserves the right to accept or decline the customer's order in whole or in part.
- Unless otherwise specified, all prices quoted are in Australian dollars and do not include other costs and charges associated with the purchase such as insurance, delivery and freight charges and duties and taxes (including without limitation any custom duties or goods and services taxes), which are the customer’s responsibility and the customer must pay or reimburse the seller for and indemnify the seller against all such costs and charges.
- The seller reserves the right to adjust its prices periodically. Any new price quotation supersedes the former quotation as regards orders placed after the date of the new quotation.
- All given weights and numbers are net weights and numbers.
Article 3 Good crop and processing reservation
All deliveries are subject to the usual crop and processing reservation. In the event that the seller makes a justified appeal to this reservation, the seller may decide not to deliver any goods or to deliver pro-rata quantities or comparable alternatives. In such a case the customer is not entitled to any compensation whatsoever.
Article 4 Supply
1. The prevailing Incoterms apply. Delivery will take place on an ex works basis.
2. The customer is not allowed to return goods to the seller, unless the seller gives permission thereto. The costs of possible return shipments shall be at the customer’s account.
Article 5 Delivery time
The seller is bound to deliver at a reasonable time in conformity to the sowing or planting season after the customer's order has been accepted. An agreed delivery date is an estimate only and the seller is not liable to the customer for any early or late delivery.
Article 6 Partial deliveries
The seller may effect partial deliveries of the goods. In the event of partial deliveries, the seller may invoice each delivery separately.
Article 7 Risk and retention of title
1. Title in the goods remain the property of the seller until the customer has paid for them in full.
2. Until title passes to the customer:
i) ownership of the goods remains with the seller;
ii) the customer holds the goods as bailee and fiduciary for the seller; and
iii) the customer must store the goods separately and in such a manner that they are clearly identified as the property of the seller;
iv) the customer must not pledge the goods or allow any other claim on them; and
v) the seller may enter the customer’s premises and take possession of the goods, the customer will render the co-operation necessary in order to achieve this
3. The customer shall furthermore impose on its customers the obligations laid down in this article.
4. The customer must pay the seller the proceeds of any goods for which the seller has not received payment, and the customer holds those proceeds on trust for the seller until paid to the seller.
5. Risk in goods passes to the customer on delivery to the customer or to the customer’s authorised representative.
Article 8 Terms of Payment
1. Unless parties have agreed on payment on a cash on delivery or cash in advance basis, the invoice amount shall be charged to the customer’s credit account. Payment shall then be due in accordance with the applicable credit account conditions.
2. If any supply under these Conditions of Sale is subject to goods and services
tax, the customer must pay the seller the price plus an amount equal to the goods and services tax, payable by the seller, at the same time as the price is due.
3. In the event of a breach of any of these Conditions of Sale by the customer, the insolvency or bankruptcy of the customer or failure by the customer to pay any invoice as they fall due, the seller may do any or all of the following (in addition to any other rights it may have):
i) require the customer to pay immediately all amounts invoiced but unpaid;
ii) suspend or cease supplying goods to the customer; and
iii) enter the customer’s premises and repossess goods for which payment has not been made.
4. The customer must pay all legal costs, fees and any other expenses including but not limited to bank charges, incurred by the seller pursuant to this article.
Article 9 Liability
1. To the extent permitted by law (including under the Trade Practices Act 1974):
i) the seller excludes all conditions and warranties implied by custom, the general law or statute and is not liable for any losses or damages (including without limitation any special, indirect or consequential losses, trading loss , or any loss of opportunity, goodwill, revenue or profits) suffered by the customer arising in any way out of the supply, delay in supplying or failure to supply goods, or provision of advice in relation to goods such as but not limited to product specifications; and
ii) the seller’s liability under any non-excludable implied condition or warranty is limited to, at the seller’s option, replacement of the goods or refund of the price for the goods (excluding goods and services tax).
2. No guarantees apply to the product specifications: in case the goods delivered do not comply with the product specifications as mentioned in the seller’s catalogue regarding the current selling season, the seller will inform the customer about this.
3. Any and all guarantees on the part of the seller lapse if the customer carries out processes on the goods or causes processes to be carried out on them, repackages the goods or causes them to be repackaged, or uses and/or stores the goods incorrectly or causes them to be used/or stored incorrectly.
4. The seller does not guarantee in any way that the use, sale, transfer, production or any other possible act involving the delivered goods and/or the use, sale, transfer, production or any other possible act involving the goods arising from the delivered goods does not infringe any (intellectual property) rights of third parties.
Article 10 Defects, complaints terms
1. The customer shall be deemed to have examined the goods on, or as soon as possible after delivery and shall inform the seller within eight days after delivery if the goods delivered do not comply with the purchase order.
2. 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 customer. 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 customer. 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. In the event that any complaint is not reported to the seller in writing within the stated period, the complaint will not be dealt with and the customer will lose all rights to obtain any form of recovery, including damages.
3. In case of a permanent dispute between the parties about germination, varietal purity, trueness to type, technical purity, an assessment may be performed at the request of either party by the Naktuinbouw (ISTA station), which has its registered office in Roelofarendsveen, the Netherlands, for the account of the unsuccessful party. The sample for this assessment will be taken from the seller. The outcome of the assessment by the Naktuinbouw will be binding for both parties, notwithstanding the right of parties concerned to submit any disputes about the consequences of this outcome to the jurisdiction referred to in article 18.
4. 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 invoice concerned.
Article 11 Indemnification
The customer indemnifies the seller against all claims and rights from third parties for compensation for damage (allegedly) caused by, or otherwise associated with, goods supplied by the seller, including claims and rights which have been submitted against the seller in its capacity as producer of the goods on the basis of any regulations relating to product liability in whatever country, except if said damage is due to intentional misconduct or gross negligence on the part of the seller.
Article 12 Advices for cultural practices, variety descriptions, recommendations
1. The customer must make its own determination whether the goods are suitable to be used for the intended cultivations and under the local conditions.
2. The customer acknowledges that differing degrees of specificity exist in the relations between plants and pests or pathogens. Identification of such specificity generally requires the use of highly elaborate analytical methods. Recognising whether a plant is subject to a pest or pathogen or not may depend on the analytical method employed. It is important, in general, to stress that the specificity of pests or pathogens may vary over time and space, depends on environmental factors, and that new pest biotypes or new pathogen races capable of overcoming resistance may emerge.
3. As used in the information supplied by the seller, immunity, resistance and susceptibility shall mean the following:
- Immunity: Not subject to attack or infection by a specified pest or pathogen.
- 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 or pathogen pressure.
If in a resistance code of a certain variety reference is made to certain pest biotypes or pathogen races for which the resistance is claimed this means that no resistance is claimed to other biotypes or races of the same pest or pathogen.
If in a resistance code no reference is made to pest biotypes or pathogen races for which the resistance is claimed this means that resistance is claimed only to certain not further specified pest biotypes or pathogen races.
Two levels of resistance are defined:
(a) High/standard resistance (HR): plant varieties that highly restrict the growth and development of the specified pest or pathogen under normal pest or pathogen pressure when compared to susceptible varieties. These plant varieties may, however, exhibit some symptoms or damage under heavy pest or pathogen pressure.
(b) Moderate/intermediate resistance (IR): plant varieties that restrict the growth and development of the specified pest or pathogen, but may exhibit a greater range of symptoms or damage compared to high/standard resistant varieties. Moderately/intermediately resistant plant varieties will still show less severe symptoms or damage than susceptible plant varieties when grown under similar environmental conditions and/or pest or pathogen pressure.
- Susceptibility: is the inability of a plant variety to restrict the growth and development of a specified pest or pathogen.
Article 13 Force Majeure
1. The seller shall not be liable for non-fulfillment of these Conditions of Sale in the event of strike, fire, floods or natural disasters, delay of carriers, act of government, shortages of required raw material or materials required for the fulfillment of these Conditions of Sale, unforeseeable stagnation of suppliers or other third parties or any other cause beyond the seller's control (Force Majeure Event). The seller's obligations under these Conditions of Sale shall be suspended for so long as the Force Majeure Event continues.
2. In the event of a Force Majeure Event occurring, the seller will inform the customer as soon as possible.
3. In case a Force Majeure Event exists for longer than two months, both parties will be entitled to terminate the affected purchase order. In such a case, the seller will not be obliged to deliver any goods or provide any indemnification to the customer.
4. In the event of a Force Majeure event occurring, the customer will not be obliged to provide any compensation.
Article 14 Further use/cultivation
1. The goods shall not be re-sold by the customer in any matter without the prior written consent of the seller.
2. The customer is not allowed to use the goods delivered for further propagation and/or reproduction of propagating material.
3. The customer shall allow the seller, or anyone, who controls on behalf of the seller, direct access to its business, including and in particular the greenhouses of its business, in order that the seller can carry out inspections. “Business” in this article shall also mean any business activities that are carried out by a third party on behalf of the customer. The customer shall upon request also allow direct access to its administration with regard to the relevant propagating material.
4. If the goods delivered are sold to a third party, the customer must impose the stipulations of paragraph 2 and 3 of this article on penalty of damages to that third party.
Article 15 Intellectual property rights
1. Unless otherwise agreed in writing, the customer must not use, or cause to register the seller’s intellectual property rights (including without limitation any trademarks, names or logos, plant breeder's rights or patents) in any way.
2. If the goods delivered are sold to a third party, the customer must impose this stipulation on penalty of damages to that third party.
Article 16 Seed-treatment at the request of the customer
1. In case the goods, at special request of the customer, are being treated by or on behalf of the seller, the seller does not provide any guarantee regarding the effectiveness and/or consequences of such treatment. The seller shall not be liable for any damage resulting from treatment performed at the special request of the customer.
2. If the seller can nevertheless be held liable for any damages resulting from a treatment performed at special request of the customer, 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 17 Severability
Part or all of any provision of these Conditions of Sale that is illegal or unenforceable may be severed from the Conditions of Sale and the remaining provisions of the Conditions of Sale continue in force.
Article 18 Applicable law and jurisdiction
These Conditions of Sale will be subject to and governed by law of the State of Victoria and the parties submit to the non-exclusive jurisdiction of the courts of that State.
Article 19 Waiver
If the seller has a right arising from the customer’s failure to comply with these Conditions of Sale and delays in exercising or does not exercise that right, that delay in exercising or failure to exercise that right is not a waiver of that right or any other right.
- Additional conditions for the sale of seeds per square metre
Article 20 Amount
The amount of seeds to be bought will be determined in consultation by the production advisor of seller and customer. This amount will be mentioned in the order form. To determine the amount of seeds, the number of square metre on which customer will grow plants shall be determined first. Said number shall also be mentioned in the order form. Seller will indicate the maximum amount of plants per square metre, which amount shall be mentioned in the order form. A deviation from the aforementioned starting point might have consequences for the price per net square metre.
Article 21 Payment
1. The price per net square metre 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 metres.
2. Invoicing for the amount due for the seeds, will take place in one term upon delivery.
Article 22 Use of the seeds
1. Customer will (cause to) use the seeds only for one production of plants on the number of square metres and in the growing period as included in the order form. In case a variety is grown on more square metres than the square metres agreed upon, customer will pay to seller twice the price as mentioned in article 21 for each square metre that exceeds the number of square metres as agreed upon. In case seeds remain after the period in which plants have been raised, seller shall collect these seeds.
2. Customer is not allowed to provide the seeds or any other material of a variety in whatever form to third parties. Customer is however permitted to provide the seeds to a plant raiser if i) the plant raiser only uses the seeds to grow young plants for customer in accordance with the number of square metres and growing period as included in the order form and ii) the plant raiser delivers all the remaining seeds and all young plants that were grown out of the seeds to customer. For this purpose, the customer shall give the relevant information to the seller.