General terms and conditions of sale and delivery Axia Vegetable Seeds B.V.
1. Applicability 1.1. These general terms and conditions apply to every offer, quotation and agreement between Axia Vegetable Seeds B.V., (hereinafter referred to as ‘Axia’) as the seller and the buyer (hereinafter referred to as ‘the Buyer’), insofar as parties have not explicitly derogated therefrom. In these General Terms and Conditions, ‘the Buyer’ must be understood to be: any natural person who or legal entity that has entered into or wishes to enter into a purchase agreement or other agreement with Axia, as well as his/its legal successors.
1.2. Applicability of any purchase conditions and/or other terms and conditions of the Buyer is expressly excluded.
1.3. If, with Axia’s prior permission, Axia’s products are passed on or redistributed to third parties, including – among others – growers and/or other end users, the Buyer guarantees and undertakes to pass on these terms and conditions to these successive third parties.
1.4. These General Terms and Conditions are available in Dutch and English. In the event of any ambiguity or discrepancy between the Dutch and English versions, the Dutch version will prevail.
2. Quotations, offers and prices 2.1. Unless indicated otherwise, the prices stated in a quotation or offer are in euros, apply ex works Naaldwijk (Incoterms 2010), and are exclusive of VAT and any other taxes and levies.
2.2. An agreement is formed through: 2.2.1. written and complete acceptance by the Buyer of the quotation or offer, unless Axia revokes the quotation or offer within three days of receipt of the acceptance.
2.2.2. written and full acceptance by Axia of an assignment given by the Buyer, unless the Buyer previously revoked such assignment in writing, provided that the relevant confirmation was signed on behalf of Axia by a person authorised to represent it; or
2.2.3. delivery by Axia of the products ordered by the Buyer, solely with regard to the products delivered according to the packing slip, in the absence of an explicit written order confirmation.
2.3. If the Buyer accepts the quotation or offer with derogations of minor importance, such derogations will not form part of the agreement, and an agreement will be formed in accordance with Axia’s quotation or offer.
2.4. Agreements that are formed through intermediaries, including but not limited to resellers and agents, are only binding on Axia if and after Axia has agreed to these in writing.
2.5. Quotations and/or purchase agreements do not imply, and can in no way be construed as implying, an implicit licence to the Buyer in respect of any intellectual property right on the products offered or sold.
2.6. Axia reserves the right to amend its prices periodically. Each new price quotation invalidates the preceding one and applies from the time of publication.
2.7. A combined quotation does not require Axia to carry out part of the assignment for a proportionate part of the quoted price.
3. Delivery and Delivery Period 3.1. Unless the parties agree otherwise in writing, deliveries are made from Axia’s company in Naaldwijk (ex works/EXW) (Incoterms 2010). Upon delivery, the risk of the relevant products passes to the Buyer.
3.2. All deliveries are made subject to harvesting and processing: the reservation with regard to delivery that there are no factors and uncertainties within the natural production process of seeds and their processing, which, even if known, cannot always be controlled or influenced. If Axia justifiably relies on this reservation, Axia will not be obliged to deliver, but will – where possible – endeavour to deliver in proportion to the quantity ordered or deliver comparable alternatives. This reservation being relied on will not entitle the Buyer to compensation.
3.3. The delivery date and any delivery periods are determined in consultation, taking into account the sowing or planting season as much as possible. The agreed delivery date and any delivery periods will under no circumstances be final deadlines. Axia will endeavour to deliver in accordance with the agreed delivery date and periods.
3.4. If, for whatever reason, Axia is unable to deliver, Axia will – where possible – be entitled to deliver in proportion to the quantity ordered, deliver comparable alternatives, or – if the Buyer does not agree to the foregoing – cancel the order. None of these circumstances will entitle the Buyer to compensation.
3.5. Axia is entitled to perform the agreement in different phases, and invoice the part thus performed separately.
4. Retention of title 4.1. The ownership of products delivered by Axia within the framework of the agreement will pass to the Buyer at the time the Buyer has properly complied with all its obligations under the agreement(s) it has entered into with Axia, including full payment of the products delivered. As long as no transfer of title has taken place, the Buyer will retain the delivered products for Axia.
4.2. The Buyer may use products delivered by Axia that are subject to the retention of title as part of its normal business activities, as long as these are stored or used in such a way that the products delivered can easily be identified as being the property of Axia. As long as there has been no transfer of the ownership of the products delivered, the plants grown from these products and any fruits of these plants will become the property of Axia, and the Buyer will retain these plants and fruits for Axia.
4.3. The Buyer is entitled to sell products delivered and/or plants grown therefrom that are subject to the retention of title pursuant to paragraphs 1 and 2 of this article and are intended for resale, as well as harvested fruits that originate from plants that are subject to the retention of title pursuant to paragraph 2 of this article as part of its normal business activities. In such case, the Buyer will, until it has paid the delivered products in full and complied with its other obligations under this agreement or similar agreements, allow Axia to be subrogated to its rights with respect to its buyer(s). Insofar as this is necessary, the Buyer hereby assigns these rights to Axia in advance, which assignment Axia hereby accepts.
4.4. Notwithstanding the provisions of Article 4.2, the Buyer is not authorised to pledge the products that are subject to the retention of title, to establish any other right in respect thereof or encumber these in any other way, or to remove these from its control in any way.
4.5. If third parties levy attachment on the products delivered under retention of title or wish to establish or assert rights in respect thereof, the Buyer will be obliged to inform Axia thereof without delay.
5. Payment 5.1. Unless Axia has indicated otherwise in writing, invoices must be paid within 14 days of the invoice date, in a way to be indicated by Axia and in the currency indicated in the invoice. Axia is entitled to invoice periodically.
5.2. If the Buyer fails to pay an invoice in time, the Buyer will be in default by operation of law. In such case, the Buyer will owe 5% interest per month. The interest on the amount due will be calculated from the time the Buyer is in default until the moment the full amount due is paid. In addition to the right to claim performance and/or compensation, Axia will be entitled to terminate the agreement(s) with the Buyer or suspend performance of all agreements if and for as long as the Buyer fails to comply with its payment obligations.
5.3. If payment in instalments has been agreed upon, late payment of any instalment will cause the entire remaining amount to become immediately due and payable, without notice of default being required. The provisions of the final sentence of paragraph 2 of this article will apply by analogy.
5.4. Axia is entitled to apply payments made by the Buyer first towards decreasing the costs, then towards decreasing the interest due, and finally towards decreasing the principal and the accrued interest. Axia is entitled to refuse any other order indicated by the Buyer for the application of such payment.
5.5. The Buyer is under no circumstances entitled to deduct any discount or settlement from the amount it owes Axia.
5.6. Objections to the amount of an invoice do not suspend the payment obligation.
5.7. If the Buyer is in default, fails to comply with its obligations, or fails to comply with its obligations in time, all reasonable costs incurred in obtaining payment will be at the Buyer’s expense. Any legal costs and execution costs incurred will be recovered from the Buyer as well. In addition, the Buyer will owe the statutory commercial interest and other interest on the collection costs owed.
6. Suspension 6.1. Axia is authorised to suspend compliance with all or some of its obligations, or to terminate the agreement in full or in part: (i) if the Buyer fails to comply with its obligations under the agreement, or fails to comply with these in full or in time;
(ii) if circumstances that come to Axia’s attention after the agreement is entered into give good grounds for fearing that the Buyer will not comply with its obligations; or
(iii) if, upon or after entry into the agreement, the Buyer was asked to make an advance payment or provide security for the compliance with its obligations under the agreement, and such advance payment is not made or such security is not provided, or is insufficient;
Axia will report the suspension of compliance with its obligations or the full or partial termination in writing. In the event of force majeure, the provisions of Article 10 of these general terms and conditions will apply to the suspension of the compliance with obligations or the termination of the agreement.
6.2. Furthermore, Axia is entitled to terminate the agreement, in full or in part, if: (i) due to delay on the Customer’s side, Axia can no longer be required to comply with the Agreement under the terms and conditions originally agreed; or
(ii) circumstances arise, the nature of which is such that compliance with the agreement is impossible, or other circumstances arise, the nature of which is such that Axia cannot reasonably be required to maintain the agreement without it being amended.
6.3. If the agreement is terminated, Axia’s claims on the Buyer will be immediately due and payable, and the Buyer will be obliged to compensate Axia for any direct and indirect loss suffered and to be suffered by Axia and for any costs incurred by it, unless the termination took place pursuant to the provisions of Article 10. If Axia suspends compliance with its obligations, it will retain its entitlements pursuant to the law and the agreement.
6.4. If Axia proceeds to suspend compliance with or terminates the agreement, it will in no way be liable to compensate the Buyer for any direct or indirect loss and costs incurred as a result or ensuing from that.
6.5. In the event of a liquidation, a moratorium or bankruptcy or an application for a moratorium or bankruptcy, attachment at the Buyer’s expense, debt restructuring or another circumstance due to which the Buyer no longer has the right to freely dispose of its assets, Axia will be free to terminate the agreement immediately and with immediate effect, or cancel the order or agreement, without prejudice to its right to claim compensation, however without any obligation on its own part to pay any compensation or indemnification. In such case, Axia’s claims on the Buyer will be immediately due and payable.
6.6. In the event of termination of the agreement, the Buyer must return all products already delivered to Axia at Axia’s first request, at no cost to Axia. This article also provides for the immediate handing over of the products to the person with whom these are located. The products will continue to be at the Buyer’s risk until these have been brought under Axia’s control and approved by it.
7. Liability 7.1. In the event that Axia is liable, for whatever reason, such liability – which also includes any loss and costs caused by faulty products supplied – will explicitly be limited to, and Axia will not be liable to pay any compensation beyond that which arises from this provision.
7.2. Axia is only liable for direct loss. Direct loss must exclusively be understood to mean any reasonable costs incurred (i) in bringing Axia’s faulty performance into line with the agreement, insofar as this can be attributed to Axia, (ii) the reasonable costs incurred in preventing or limiting loss, insofar as the Buyer demonstrates that these costs have resulted in a limitation of direct loss as referred to in these general terms and conditions, and (iii) the reasonable costs incurred in determining the cause and extent of the loss, insofar as the determination relates to loss within the meaning of these terms and conditions.
7.3. Under no circumstances will Axia be liable for an amount exceeding the invoice value of the faulty products, nor will Axia be liable for compensation of any form of indirect or consequential loss, such as loss of profit, lost savings and loss due to business interruption.
7.4. If Axia’s liability is covered under a liability insurance taken out by Axia, and the insurer makes a payment under this insurance, Axia’s liability will under no circumstances exceed, and will therefore be limited to, the amount actually paid out by its insurer.
7.5. If a product shows a fault that was complained about in time, Axia will be entitled to replace the faulty products or terminate the agreement, and refund the purchase price received. Which of these options is used will be at Axia’s sole discretion. In such case, the Buyer is not entitled to any other or further compensation for loss or reimbursement of costs incurred.
7.6. Axia is not liable for loss and costs: (i) that arise because Axia has operated on the basis of incorrect and/or incomplete information provided by or on behalf of the Buyer;
(ii) that result from deviations or different results in the products grown from the products supplied, including – without limitation – deviations in growth and flowering;
(iii) that are caused by a mutation in a resistance or by a bacterial or viral disease or infection, provided that the disease or infection does not originate from the seeds supplied. A disease or infection will be deemed not to have
originated from the seeds supplied if a statement or protocol issued by the NAK-T or a NAK-T accredited laboratory shows that a representative seed sample taken from the lot from which the seeds were supplied has been found to be free of the alleged disease or infection;
(iv) that arise from errors, incompleteness or incorrectness in the product or cultivation information, and/or advice provided by or on behalf of Axia. The Buyer must judge for itself whether the products supplied are suitable for use for the intended cultivation or under the local conditions;
(v) that are caused by force majeure as referred to in Article 10;
(vi) that arise from mistakes or negligence in the performance of the agreement or the use of auxiliary materials, unless it concerns an intentional act or omission and/or gross negligence on the part of Axia or one of its employees.
7.7. Any claims for compensation submitted by the Buyer will lapse if the time limits for submitting a complaint as referred to in Article 9 have expired or an invisible defect becomes apparent more than 60 days after the date of sowing.
7.8. Axia cannot be held liable for loss of/or damage to or of a product grafted by the Buyer or a third party at the request of the Buyer. The Buyer (i) accepts and expressly agrees to this disclaimer for grafting with the product and (ii) expressly accepts and agrees that any use of or grafting of the product with a rootstock is entirely at its own expense and risk.
8. Use and warranty 8.1. The products supplied are exclusively intended for the cultivation of crops for human or animal use and/or consumption in accordance with the product specifications as published by Axia.
8.2. The products supplied may in no way, directly or indirectly, be used or offered for breeding purposes or for propagation of these seeds or of plants grown from these seeds.
8.3. The products to be supplied by Axia to the Buyer meet the relevant requirements set by the Dutch inspection authorities at the time.
8.4. The product specifications provided by Axia will under no circumstances be considered a guarantee. Axia does not guarantee that the seeds supplied serve the purpose given to these by the Buyer. The Buyer is responsible for verifying that the products supplied are suitable for their intended purpose and use, and comply with the conditions set for these. Axia makes no warranties or representations about the product and Axia disclaims all other warranties, express or implied, including but not limited to warranties of merchantability, fitness for a particular purpose, absence of seed-borne diseases, disease resistance or any other warranty.
8.5. The germinative capacity stated by Axia is based solely on a reproducible laboratory test. No direct relationship can be assumed between the indicated germinative capacity and the emergence of supplied seeds at the Buyer. This indicated germinative capacity only indicates the germinative capacity at the time the test was performed and for the conditions under which the test was performed. Emergence depends on – among other things – the location, cultivation measures or climate conditions on the Buyer’s premises.
8.6. Any form of guarantee will lapse (and Axia will therefore not be liable for defects) if the Buyer uses the supplied products inexpertly, incorrectly or improperly or a defect is the result of or arises from use after the best-before date, incorrect storage, repackaging or maintenance thereof by the Buyer or third parties, or if the Buyer or third parties have made changes or tried to make changes to the products, have attached and/or added other products to these, or these have been processed or treated in a way other than as prescribed. The Buyer will also not be entitled to claim under a guarantee if a fault in the product was caused by or is a consequence of circumstances beyond Axia’s control, including weather conditions, et cetera.
8.7. Axia does not guarantee in any way whatsoever that the use, sale, transfer, production or any other possible action with regard to the products supplied and/or the use, sale, transfer, production or any other possible action with regard to products arising from the products supplied does not infringe the intellectual property rights and other rights of third parties.
9. Defects; time limits for submitting a complaint 9.1. The Buyer is obliged to inspect the products supplied, or have these inspected, immediately after the products are made available to it. The Buyer should investigate whether the quality and/or quantity of the goods supplied corresponds to what was agreed upon, and meets the quality requirements and other requirements the parties have agreed upon. Any visible faults must be reported to Axia in writing within seven days of delivery. Any invisible faults must be reported to Axia in writing without delay, but in any case no later than within fourteen days of being discovered, stating the details of the
consignment, delivery note and/or invoice. In order to enable Axia to respond adequately, the notice must describe the defect and the place of storage or cultivation in as much detail as possible. The Buyer must give Axia or a third party to be appointed by Axia the opportunity to investigate or have a third party investigate a complaint. 9.2. If the Buyer starts using the products, this will be considered acceptance. Minor deviations, for example in terms of quality, composition and properties, that are unavoidable from a technical point of view or are generally accepted, can under no circumstances serve as a ground for complaints.
9.3. The Buyer is obliged to limit the loss as much as possible. It is obliged to keep the products about which it complains at Axia’s disposal. The Buyer will at all times be obliged to cooperate in the investigation of the complaint.
9.4. Subject to the other provisions of this article, the Buyer cannot return or exchange products supplied once the packaging has been opened.
9.5. If, with regard to a complaint as referred to in this article, the parties are unable to reach an amicable settlement, the Buyer will have an independent, officially recognised expert draw up a surveyor’s report, the costs of which the Buyer will advance and will be at the Buyer’s expense, unless, according to the surveyor’s report, the rejection proves to be justified.
9.6. If the Buyer does not submit a complaint within the time limits indicated in this article, the complaint will not be handled, and the rights will be deemed to have lapsed.
9.7. If the Buyer complains in time, this will not suspend its payment obligation. In such case, the Buyer will also remain obliged to take delivery of and pay for the other products ordered.
9.8. In the event of a dispute between the parties about germinative capacity, trueness to variety, varietal purity and technical purity, an inspection or re-inspection may, at the request of either party, be carried out by Nak Tuinbouw, established in Roelofarendsveen, the Netherlands, at the expense of the party that is found to be most in the wrong. Such re-inspection test will be carried out on the basis of an approved sample. The result of this inspection or reinspection will be binding on both parties, without prejudice to the parties’ right to submit disputes about the consequences of this result to the body referred to in Article 14.
9.9. If the Buyer has submitted a complaint in time and the complaint is justified, Axia will only be obliged to deliver any missing products after all, replace the supplied products or take back the products, and credit the Buyer for the relevant invoice amount. Which of these options is used will be at Axia’s sole discretion. Axia will under no circumstances have any further obligation, which includes an obligation to pay compensation of other costs and/or loss.
10. Force majeure 10.1. Axia will not be obliged to comply with an obligation towards the Buyer if it is prevented from doing so due to a circumstance for which it cannot be blamed and that is not at its expense pursuant to the law, a legal act or according to common opinion.
10.2. In these general terms and conditions, ‘force majeure’ must be understood to mean, in addition to what this is understood to mean according to the law and case law, among other things: all external causes, whether foreseen or unforeseen, on which Axia cannot exert influence but due to which Axia is unable to comply with its obligations, which includes work strikes at Axia’s company or with third parties, a failure on the part of suppliers or any engaged (sub)contractors to comply with their obligations, or do so in time, loss of harvest and diseases or plagues. Axia will also be entitled to rely on force majeure if the circumstance preventing any compliance or further compliance with the agreement arises after Axia should have complied with its obligations already.
10.3. During the period of force majeure, Axia is entitled to suspend compliance with its obligations under the agreement. If this period lasts more than two months, either party may terminate the agreement without any obligation to compensate the other party for loss or benefits gained.
10.4. If, when the force majeure arises, Axia has already complied or will be able to comply with some of its obligations under the agreement, Axia will be entitled to invoice the part already complied with separately. The Buyer will be obliged to pay such invoice as if it were a separate agreement.
11. Use of brands, marks, cultivation 11.1. Seeds are packed and supplied in original Axia packaging. Unless otherwise agreed in writing, seeds supplied for resale may only be offered for resale in their original packaging. Without Axia’s prior written permission, repackaging the seeds for resale or otherwise making changes to the original packaging is not permitted.
11.2. The Buyer is forbidden from using the products supplied for further production and/or reproduction of source material.
11.3. Unless otherwise agreed in writing, any resale of the products supplied will only be permitted under the relevant variety name and brand name.
11.4. Axia will at all times be entitled to enter the location at which the supplied products are located or grown in order to inspect these. This includes business activities carried out by a third party on the growers’ behalf. In the event of control operations with retard to the products supplied on Axia’s behalf, the Buyer will grant access to its premises, crops and administration at Axia’s first request.
11.5. Mutants found in an Axia variety are the property of Axia. The Buyer will immediately inform Axia of the discovery of a mutant, after which the Buyer will send Axia a sample thereof.
12. Amendments 12.1. Axia is entitled to amend these general terms and conditions. The amendments will enter into force on the date announced. Axia will send the amended terms and conditions to the Buyer in good time. If no effective date is indicated, amendments will enter into force for the Buyer as soon as the amendment is communicated to it or has become apparent to it.
12.2. If a provision in these general terms and conditions is invalid or contrary to applicable law, that specific provision will automatically be replaced by a valid provision, the purport of which is as close as possible to that of the invalid or contrary provision.
12.3. In the event of invalidity of a provision of these general terms and conditions, the other provisions will remain valid to the fullest possible extent.
Axia is entitled to transfer its rights and obligations from the agreements it has entered into to another company, whether or not this company is affiliated with Axia. Axia will inform the Buyer of such a transfer. The Buyer hereby agrees to such a transfer in advance.
14. Applicable law, settlement of disputes, and choice of forum 14.1. All quotations, offers and agreements to which these general terms and conditions apply and the execution thereof, as well as all non-contractual obligations arising from these agreements, will be governed exclusively by Dutch law.
14.2. The parties will endeavour to resolve any disputes related to, arising from and/or regarding the interpretation and/or execution of the agreement to which these terms and conditions apply amicably. Disputes that have not been resolved within a reasonable period of three months of the dispute arising will be submitted exclusively to the competent court in The Hague.
14.3. The applicability of the United Nations Convention on Contracts for the International Sale of Goods (the Vienna Convention) is hereby expressly excluded.