General Terms and Conditions of Sale
Varieties offered by Totam Seeds are tested and certified under the EU law and regulation and are distributed/shipped in conformity with the EU law and international regulation as far regard seeds vegetables trading.
Article 1. Applicability of these General Terms and Conditions
These General Terms and Conditions of Sale apply to all offers and sales between Totam Seeds BV (hereinafter “Seller”) and a buyer (hereinafter “Buyer”), except in so far as otherwise provided in writing. The applicability of any general terms and conditions of the Buyer is expressly rejected.
Article 2. Offers and Prices
1. 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), unless otherwise specified.
2. The Seller reserves the right to change its prices periodically. Each new price listing will invalidate the preceding one regarding all orders placed after that new price listing. 3. Seller has the right to stop shipments immediately to any Buyer who does not comply with these terms and conditions. 4. All references by the Seller to product specifications correspond to the most recent product specifications as published by the Seller.
Article 3. Ordering and Delivery
1. All sales orders received are subject to written confirmation of acceptance by Seller. Quantities confirmed in Sales Orders are contractual obligations of Buyer. Adjustments of any confirmed quantities require Sellers’ agreement in writing. 2.The Seller will always act to the best of its reasonable ability in fulfilling its obligation to deliver.
3. Seller disclaims all liability for any carrier delivery delays regardless of whether carrier is selected by Buyer or Seller.
4. In addition to the purchase price, Buyer shall pay Seller the amount of all taxes, excises, or other charges (except taxes on or measured by net income) that the Seller may be required to pay to any Government (national, state, or local) with respect to the production, sale or transportation of any product delivered hereunder, except where the law otherwise provides.
5. 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: a) phytosanitary requirements; b) invoices; c) and other import documents required.
Article 4. Retention of Title
1. The Buyer is not permitted to pledge the products or to create any other right about the products.
Article 5. Payment
1. Unless otherwise agreed in writing, for Buyers that have established credit privileges with Seller and are in good credit standing payment must be received by the Seller within thirty (30) days after the Invoice Date. For these Buyers for payments received by Seller within fifteen (15) days of Invoice Date a two (2) percent early payment discount will be recognized for the value of products only.
2. Orders or shipment requests from Buyers, who, in Sellers’ judgment will be delivered only after a pre-payment of the full order invoice, a two (2) percent discount will be recognized for the value of products only.
3. All payments to Seller must be in € Euro unless otherwise agreed upon in writing by Seller.
Article 6. Liability
1. The Seller’s liability is exclusively governed by this Article.
2. 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.
3. In a situation of force majeure as described in Article 9, Seller shall not be liable for any failure in the performance of any of its obligations under these General Terms and Conditions of Sale.
4. The Seller will in no event be liable for any form of indirect damages, such as but not limited to special, incidental, or consequential damage, or loss of profit. 5. 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 and are not intended as an indication for quality claims and/or warranties. The Seller in no event accepts any liability, however, based on such information for different results in the cultivated product. 6. The Buyer itself must determine whether the products are suitable for the intended growth and/or can be used in the local conditions.
Article 7. Use and Guarantee
1. The Seller guarantees that the products supplied will substantially comply with the relevant product specifications. However, the product specifications will not apply as a guarantee. The Seller furthermore does not guarantee that the performances rendered will comply with the purpose to which these are put by the Buyer.
2. The specified germination 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.
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 and/or stores the products incorrectly or has them used and/or stored incorrectly.
4. As used in the information supplied by Seller when indicating the resistance, the following explanation must be read where two levels of resistance are defined:
a) Resistance: the ability of a plant variety to restrict the growth and development of a specified pathogen or pest and/or the damage they cause when compared to susceptible plant varieties under similar environmental factors and pathogen or pest pressure.
b) High resistance (HR*): plant varieties that highly restrict the growth and development of the specified pathogen or pest under normal pathogen or pest pressure when compared to susceptible varieties. These plant varieties may, however, exhibit some symptoms or damage under heavy pathogen pressure.
c) Intermediate resistance (IR*): plant varieties that restrict the growth and development of the specified pathogen or pest, but may exhibit a greater range of symptoms or damage compared to resistant varieties. Moderately/intermediately resistant plant varieties will still show less severe symptoms or damage than susceptible plant varieties when grown under similar environmental factors and/or pathogen or pest pressure.
* The standard abbreviations HR (high resistance) and IR (intermediate resistance) are used in all languages.
Article 8. Intellectual Property Rights
1. Seed from varieties protected by intellectual property rights, applied for or granted in the European Community, the United States, and/or any other country, or by contract, may not be used for reproduction without the Seller’s prior written permission. Conditions may be attached to such permission by way of a contract 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.
2. In accordance with this Article 8 the 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.
3. 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.
4. 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.
5. If the Buyer finds a mutant in the protected variety, he shall immediately inform the Seller of this by registered post.
6. Where the Seller so requests in writing, the Buyer will provide the Seller with test material from the mutant within two (2) 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 Seller 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.
7. If the Buyer resells the products of the Seller, the Buyer will impose the obligations he has under this Article 13 upon its buyers, including the obligation for that buyer to impose the same obligations upon its buyer and so forth.
Article 9. Force Majeure
1. The Seller may delay its performance of an obligation towards the Buyer when it cannot perform due to a circumstance that stands in the way of fulfilling the obligation and cannot be attributed to the Seller if and in so far as this circumstance makes performance impossible or unreasonably complicated. Such a circumstance includes -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.
2. The Seller will inform the Buyer as soon as possible if it is unable to deliver or to deliver in time due to an event of force majeure.
3. If the event of force majeure lasts longer than two (2) months, both parties will be entitled to cancel the Sales Order. In that case neither party will be required to pay any damages to the other party.