Terms & conditions

General Terms and Conditions of Sale and Delivery of Rijk Zwaan Australia Pty Ltd.

Applicable to all offers and agreements.

Definitions and interpretation.

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

1. The seller reserves the right to accept or decline the customer's order in whole or in part.

2. 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.

3. 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.

4. 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. Except where the Australian Consumer Law (as applicable) provides otherwise:  i) the customer is not allowed to return goods to the seller, unless the seller gives permission thereto; and ii) 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 affect 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. The customer shall pay for the goods on a cash in advance basis, unless the customer applies for and is granted a 30 day trade credit account by seller in which case 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. The customer reserves the right to refuse applications for a 30 day trade credit account.

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 invoice amount 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;  iii) enter the customer’s premises and repossess goods for which payment has not been made; and iv) immediately commence legal proceedings for the recovery of any or all amounts owing, or which become owing, by the customer to the seller, in which case a certificate in writing signed by an authorised officer of the seller shall be prima facie evidence of such amounts owing by the customer.

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. In these Conditions of Sale, “Australian Consumer Law” has the meaning given to that term in section 4 of the Competition and Consumer Act 2010 (Cth); “Consumer” has the meaning given to that term in section 3 of the Australian Consumer Law; “PDH Goods or Services” means goods or services of a kind ordinarily acquired for personal, domestic or household use or consumption; and “Losses” means any liabilities, losses, damages, costs and expenses (including legal costs and expenses, regardless of whether incurred or awarded) arising in contract, tort (including negligence) or otherwise.

2. Under the Australian Consumer Law (and other similar legislation of Australian states and territories), certain statutory guarantees are conferred in relation to the supply of goods or services to a Consumer (“Consumer Guarantees”).

3. To the extent permitted by law, apart from the express terms of these Conditions of Sale and (where applicable) the Consumer Guarantees, the seller gives no other representations, guarantees, warranties or conditions, express or implied, in relation to any goods or services supplied under these Conditions of Sale, or any other rights provided by the seller under these Conditions of Sale. The seller excludes from these Conditions of Sale all representations, guarantees, conditions, warranties, rights, remedies, liabilities and other terms that may be conferred or implied by statute, general law or custom, except any guarantee or right conferred under any legislation (including the Australian Consumer Law), the exclusion of which would contravene legislation or cause part or all of the clause purporting to exclude that guarantee or term to be void.

4. The seller is not liable, whether in contract, tort (including negligence) or otherwise, for: i) any Losses suffered by a party that cannot reasonably be considered to arise naturally from a breach of these Conditions of Sale or the event(s) giving rise to the Losses; ii) any and all actual or anticipated loss of profits, revenue, goodwill, savings, data, business opportunity or expectation; or iii) any and all indirect, special, consequential, punitive or exemplary Losses.

5. Except where the Australian Consumer Law (as applicable) provides otherwise, 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.

6. Except where the Australian Consumer Law (as applicable) provides otherwise, 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.

7. Except where the Australian Consumer Law (as applicable) provides otherwise, 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. 

8. Where the customer acquires goods and services under these Conditions of Sale as a Consumer from the seller as a supplier, i) the seller limits its liability for a failure to comply with any Consumer Guarantees (other than (a) a Consumer Guarantee as to title, encumbrances or undisturbed possession of goods conferred by the Australian Consumer Law; or (b) where to do so would otherwise cause all or part of this clause to be void) to (at the seller’s option):

- in the case of goods, repairing or replacing the goods or paying the cost of having the goods repaired or replaced; and

- in the case of services, re-supplying the services or paying the cost of having the services re-supplied,

and the seller does not exclude or limit the operation of the Consumer Guarantees under any other provision of these Conditions of Sale or in any other manner and the parties agree it is fair and reasonable in all the circumstances for the seller’s liability to be so limited. ii) the seller only supply goods and services to professional growers, however in case the goods and services supplied by the seller qualify as PDH Goods or Services, the operation of the Consumer Guarantees are not excluded or restricted in these Conditions of Sale.

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. Except where the Australian Consumer Law (as applicable) provides otherwise, 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, or any other ISTA accredited station as agreed by the parties, for the account of the unsuccessful party. The sample for this assessment will be taken from the seller.

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

Except where the Australian Consumer Law (as applicable) provides otherwise, 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

Except where the Australian Consumer Law (as applicable) provides otherwise:

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.

Article 20 PPSA

1. The customer acknowledges that these Conditions of Sale create a security interest in the goods supplied to the customer for the purposes of the Personal Property Securities Act 2009 (Cth) (PPSA). In addition, the customer grants the seller a charge in all goods supplied to the customer under these Conditions of Sale, which charge secures the performance by the customer of its obligations to the seller.

2. Nothing in these Conditions of Sale may be construed as an agreement or consent by the seller to: i) subordinate any security interest granted in favour of the seller in favour of any person; or ii) defer or postpone the date of attachment of any security interest granted in favour of the seller.

3. The customer must not create or cause to be created a security interest over, or in respect of its rights in, the goods, other than a security interest arising under these Conditions of Sale and other than a security interest granted by the customer in all of its assets in favour of a bank or similar financial institution.

4. The customer must not, without the seller's prior consent, allow: i) the goods to become mixed or commingled with any other property; ii) the goods to become an accession to any other property; or iii) any other property to become an accession to the goods.

5. The customer must do all things and provide all information necessary to enable the seller to perfect its security interest in the goods, including: i) ensuring that the security interest is enforceable against third parties, or otherwise effective; and ii) assisting the seller to complete the registration of any financing statement or financing change statement (each as defined in the PPSA).

6. The customer must immediately notify the seller if any other person attempts to enforce a security interest in the goods.

7. The seller may apply or appropriate all money received from the customer as the seller sees fit (including so as to enable the seller to preserve any purchase money security interest (as defined in the PPSA)).  An application or appropriation by the seller will override any appropriation made by the customer.  For the purposes of the PPSA, this paragraph constitutes the method of payment application agreed by the parties.

8. To the extent permitted by law, the customer irrevocably waives its right to receive notice of a verification statement (as defined in the PPSA) in respect of each security interest granted in favour of the seller. 9. To the extent permitted by law, the customer irrevocably waives any rights under sections 95, 118, 121(4), 130 and 132(4) of the PPSA. 10. Where the seller has rights or powers in addition to, or existing separately from, those in Chapter 4 of the PPSA, those rights and powers will continue to apply and are not limited or excluded (or otherwise adversely affected) by the PPSA.

Additional conditions for the sale of seeds per square metre

.

Article 21 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 22 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 23 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 22 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.