Terms and Conditions

AXIA VEGETABLE SEEDS B.V.

GENERAL TERMS AND CONDITIONS OF SALE AND DELIVERY

Clause 1 – Applicability

1.1
These general terms and conditions apply to every offer, quotation and agreement of purchase and sale in respect of which Axia Vegetable Seeds B.V. (hereinafter referred to as “Axia”) acts as the vendor.

1.2
The applicability of any possible procurement conditions of the other party (hereinafter referred to as the “Other Party”) is explicitly excluded. Other Party in these terms and conditions shall be taken to mean: every (juristic) person who has concluded a purchase agreement with Axia or wishes to do so, as well as the legal successors of such (juristic) person.
1.3 If one or more stipulations of these general terms and conditions are null and void or would be nullified entirely or in part at any time, all other stipulations of these general terms and conditions will remain applicable in full and unchanged. In that case, Axia and the Other Party will act according to rules which approximate to the effect of the incompatible stipulation(s) of these general terms and conditions as far as possible, and which are not contrary to applicable rules of mandatory law. They will record those replacement rules in (a) valid stipulation(s) as soon as possible.

Clause 2 – Quotations, offers and formation of agreements

2.1
All quotations and offers of Axia are subject to contract, unless the quotation stipulates a period for acceptance.

2.2
An agreement is considered to have been concluded by:

(i) written and full acceptance of the quotation or offer by the Other Party, unless Axia revokes the quotation or offer within three days from receipt of such acceptance. If the Other Party accepts the quotation or offer with divergences of minor importance, such divergences shall not form part of the agreement and an agreement will be formed in accordance with the quotation or offer of Axia; or

(ii) written and full acceptance by Axia of an order given by the Other Party, unless this order has been revoked previously by the Other Party in writing, provided that such confirmation has been signed on behalf of Axia by one or more persons authorized to conclude the agreement; or

(iii) delivery by Axia of the goods ordered by the Other Party, exclusively with regard to the goods delivered in accordance with the packing slip in the case, where there is no explicit written confirmation of the order.

2.3
Agreements which have been concluded by intermediaries, including but not limited to resellers, shall only be binding on Axia if and after Axia has agreed to it in writing.

2.4
If the Other Party accepts the quotation or offer with divergences of a non-minor importance, Axia shall not be bound by it. In that case, the agreement shall not be formed in accordance with the acceptance including such divergences, unless Axia specifies otherwise.

Clause 3 – Prices

3.1
The prices stated in the quotation or offer of Axia apply ex works and are exclusive of Dutch VAT and other taxes and levies and any possible costs to be incurred within the scope of the agreement, including but not limited to compensation with regard to plant breeders’ rights and travelling, accommodation, packaging, dispatching and administrative expenses, unless specified otherwise.

3.2
Unless specified otherwise, the prices stated in a quotation or offer are indicated in euros.

3.3
Axia reserves the right to alter prices periodically. Every new price renders the previous one inoperative in respect of orders placed after such new price.

3.4
A compound quotation does not oblige Axia to carry out part of the order for a corresponding part of the price stated. Offers or quotations do not automatically apply to future orders.

3.5
One-off packaging will be invoiced at cost and will not be readmitted by Axia. With regard to reusable packaging and other durable material, Axia shall be entitled to invoice a user fee.

Clause 4 – Delivery and delivery period

4.1
Delivery takes place ex Axia works, unless the parties agree otherwise in writing. The Other Party is obliged to take delivery at the time the goods are made available to it. If the Other Party refuses to take delivery or is negligent with regard to giving the information or instructions necessary for the delivery, Axia shall be entitled to store the goods at the expense and risk of the Other Party.

4.2
All deliveries take place subject to the proviso of harvest and processing. In the case where Axia legitimately invokes this proviso, Axia shall not be obliged to deliver, but will, where possible, endeavour to supply in proportion to the quantity ordered or similar alternatives. If Axia invokes this proviso, the Other Party shall not be entitled to compensation.

4.3
The delivery date and any possible delivery periods are agreed in consultation, in which respect the sowing or planting seasons are taken into account as far as possible. The agreed delivery date and any possible delivery periods are not strict deadlines. However, Axia will make every effort to deliver in conformity with the agreed delivery date and delivery periods. In case it is impossible to deliver on the agreed date or in the agreed period, Axia will inform the Other Party in writing thereof and will set a new date in consultation with the Other Party.

4.4
If Axia is not able to deliver for whatever reason, Axia shall be entitled, where possible, to supply in proportion to the quantity ordered or similar alternatives or – if the Other Party does not agree with the foregoing – to cancel the order. The Other Party shall not be entitled to compensation in any of these cases.

4.5
Axia is free to select the method of dispatching and packaging the goods to be delivered, unless agreed otherwise in writing with the Other Party.

4.6
Axia is entitled to execute the agreement in several phases and to invoice the part thus executed separately.

4.7
When the Other Party takes delivery before the agreed delivery date, all risk arising from this shall be for the Other Party.

4.8
When the Other Party takes delivery after the agreed delivery date, all risk, including but not limited to any possible loss of quality due to longer storage, shall be for the Other Party and the latter shall indemnify Axia against claims for damages for whatever reason that may arise from it. If the abovementioned longer storage leads to a loss of quality or decay of the products after a reasonably limited storage period has expired, Axia shall be entitled to cancel the agreement, in which respect the Other Party shall compensate all damage arising from it suffered by Axia, and the Other Party itself shall not be entitled to compensation.

Clause 5 – Packaging

5.1

Seeds are packaged and delivered in original Axia packaging.

5.2
If seeds are delivered for resale, they shall exclusively be offered for resale in this original packaging. It is not permitted to repackage the seeds for resale or otherwise change the original packaging.

5.3
Repackaging of seeds or changes to the original packaging shall result in the lapse of any claim on a guarantee issued by Axia and Axia never being liable for faults in or on the seeds delivered or for the delivery of the wrong seeds or divergences in quantity.

Clause 6 – Force Majeure

6.1
Axia shall not be liable to fulfil any obligation in respect of the Other Party if Axia is obstructed therein as a consequence of any circumstance for which Axia cannot be blamed nor held accountable for by law, a juristic act or generally accepted standards.

6.2
Apart from the relevant legal provisions and case law, force majeure in these general terms and conditions shall be taken to mean all external causes, whether anticipated or not, on which Axia cannot exert influence, but due to which Axia cannot fulfil its obligations; strikes in the company of Axia or by third parties, late or non-fulfilment of their obligations by suppliers or (sub)contractors engaged, loss of harvest and diseases or plagues included. Axia shall also be entitled to invoke force majeure if the circumstance which impedes (further) fulfilment of the agreement occurs after Axia should have fulfilled its commitment.

6.3
During the period in which the force majeure continues, Axia may suspend the obligations from the agreement. If this period lasts longer than two months, each of the parties shall be entitled to dissolve the agreement without any obligation to compensate any damage or benefit derived in respect of the other.

6.4
If Axia has already partly fulfilled its obligations from the agreement when the force majeure occurs or will be able to fulfil them, Axia shall be entitled to a separate invoicing of the part already fulfilled, or the part to be fulfilled respectively. The Other Party shall undertake to pay such invoice as if it were a separate agreement.

Clause 7 – Retention of title

7.1
The ownership of goods delivered by Axia within the scope of the agreement will be passed to the Other Party at the moment the Other Party has properly fulfilled all obligations from the agreement(s) concluded with Axia, including full payment of the goods delivered. As long as the transfer of ownership has not taken place, the Other Party shall keep the goods delivered in possession for Axia.

7.2
Goods delivered by Axia which come under the retention of title pursuant to paragraph 1 of this clause, may be used by the Other Party within the scope of ordinary business operations. As long as the ownership of the goods delivered has not been transferred, any plants and all fruits from these plants grown from these goods shall be owned by Axia and the Other Party shall keep possession of these plants and fruits for Axia. As soon as the ownership of the goods delivered passes to the Other Party, the possession of the abovementioned plants and fruits shall also pass to the Other Party.

7.3
The Other Party is entitled to sell goods delivered and/or plants grown from them, within the scope of ordinary business operations, which come under the retention of title pursuant to paragraphs 1 and 2 of this clause and are destined for resale, as well as fruits harvested from plants which come under the retention of title pursuant to paragraph 2 of this clause. In that case, the Other Party will let Axia acquire the rights in respect of its customer(s) until the Other Party has paid for the goods delivered in full and fulfilled its other obligations under this agreement or similar agreements with us. If this situation arises, the Other Party states that it will transfer these rights to Axia insofar as necessary, which transfer Axia hereby accepts.

7.4
The Other Party is not entitled to pledge the goods which come under the retention of title, create any other right thereto or encumber them in any other way or remove them from its control in whatever way, subject to the stipulations of clause 7.2.

7.5
The Other Party shall always do all that which may reasonably be expected of it in order to safeguard Axia’s ownership rights.

7.6
If third parties attach any goods delivered under the retention of title or wish to create rights to them or lay claim to rights to them, the Other Party shall be obliged to inform Axia thereof immediately.

7.7
The Other Party shall undertake to insure the goods delivered under retention of title and keep them insured against fire, explosion and water damage as well as against theft, and make the insurance policy available to Axia for inspection on the latter’s demand thereto. In case of any possible payment on the insurance, Axia shall be entitled to this money. Insofar as necessary, the Other Party commits itself in advance in respect of Axia to cooperate in everything that might (appear to) be necessary or advisable within that scope.

Clause 8 – Payment

8.1
Axia is entitled to invoice periodically.

8.2
Payment shall take place in euros, unless specified otherwise in writing by Axia, and must be received within 14 days of the invoice date in the bank or giro account indicated by Axia . After expiry of that period of time, the Other Party shall be in default, without a notice of default being required. In that case, the Other Party shall owe a 1% interest per month, unless statutory interest is higher, in which case statutory interest is due. The interest on the amount due and payable will be charged from the moment the Other Party is in default until the moment of payment of the total amount due. Apart from the right to claim fulfilment and/or compensation, Axia shall also be entitled to dissolve the agreement. Without prejudice to the above, Axia shall be entitled to suspend the execution of all agreements with the Other Party if and as long as it is in default with regard to its payment obligations.

8.3
If payment in instalments has been agreed, the entire remaining amount shall be immediately due and payable without notice of default in case of late payment of any instalment. The stipulations of the last sentence of paragraph 2 of this clause apply by analogy.

8.4
Axia is entitled initially to apply payments made by the Other Party to reduce the costs, subsequently to reduce the interest on overdue amounts and, finally, to reduce the principal and accrued interest.

8.5
Axia may refuse an offer for payment without entering into default, if the Other Party indicates a different sequence for the allocation of payment. Axia may refuse full repayment of the principal in the case where payment of interest on overdue amounts, accrued interest and collection charges are not made simultaneously.

8.6
Axia is entitled to claim an advance of 50% of the invoice amount from the Other Party on or after conclusion of the agreement, prior to any (further) performance, or to obtain security from the Other Party with regard to its payment obligations. If the Other Party fails to pay the advance or provide security within the period of time set by Axia, the latter shall be entitled to dissolve the agreement without judicial intervention.

8.7
The Other Party is never entitled to deduct any discount or settlement of what it owes to Axia.

8.8
Any objection against the amount of the invoice shall not suspend the payment obligation.

8.9
If the Other Party is in default or fails to fulfil its obligations (in time), all reasonable costs incurred to obtain an out-of-court settlement shall be at the expense of the Other Party. Any possible judicial and execution costs incurred shall also be recovered from the Other Party. The Other Party shall also owe interest on the collection charges due.

Clause 9 – Suspension of fulfilment of obligations and dissolution of the agreement

9.1
Axia is entitled to suspend fulfilment of the obligations or dissolve the agreement entirely or in part if:

(i) the Other Party fails to fulfil the obligations under the agreement or fails to do so in time or in full; or

(ii) circumstances which give Axia good reason to suspect that the Other Party will not fulfil its obligations are brought to the attention of Axia after conclusion of the agreement; or

(iii) the Other Party has been requested on or after conclusion of the agreement to pay an advance on the invoice amount or to provide security for the fulfilment of its obligations under the agreement and fails to do so.
If Axia makes use of its right to suspend fulfilment of the obligations or dissolve the agreement entirely or in part, suspension or dissolution shall take place by means of a written notice to that end.
In case of force majeure, the stipulations of clause 6 of these general terms and conditions apply to suspension of the fulfilment of obligations or dissolution of the agreement.

9.2
Furthermore, Axia is entitled to dissolve the agreement entirely or in part if:

(i) owing to a delay on the part of the Other Party, Axia can no longer be required to fulfil the agreement on the originally agreed conditions;

(ii) circumstances occur which are of such nature that fulfilment of the agreement is not possible or if other circumstances occur which are of such nature that unmodified maintenance of the agreement cannot reasonably be required from Axia.

9.3
If the agreement is dissolved, the amounts owed to Axia by the Other Party shall be immediately due and payable and the Other Party shall undertake to compensate Axia for any direct and indirect damage suffered and to be suffered by it and to pay any costs incurred by it, unless the dissolution took place pursuant to the stipulations of clause 6. In the case where Axia suspends fulfilment of the obligations, it will retain its statutory entitlements as well as its entitlements under the agreement.

9.4
If Axia proceeds to suspension or dissolution, it shall not be liable in any way to compensate the Other Party for any direct or indirect damage or pay it any costs that may have been caused by it or arisen from it.

9.5
If the agreement is dissolved by Axia, Axia will cooperate in assigning the work still to be carried out to third parties for as far as this is reasonably possible and on the request of and in consultation with the Other Party. All this, unless the Other Party is accountable for the termination. If the assignment of the work involves costs for Axia, they shall be charged to the Other Party and shall be paid by the Other Party before the assignment.

9.6
In case of winding-up, (an application for) a moratorium or bankruptcy, attachment at the expense of the Other Party, debt restructuring or another circumstance due to which the Other Party can no longer dispose freely of its property, Axia shall be free to dissolve the agreement forthwith and with immediate effect or cancel the order or agreement, without prejudice to its right to claim compensation, however without any obligation on its part to pay any compensation or indemnification. In that case, any amounts owed to Axia by the Other Party shall be immediately due and payable.

9.7
If the Other Party cancels an order placed entirely or in part, all costs incurred by Axia up to and including the cancellation (including but not limited to the costs for goods already ordered and those arising from obligations assumed for the execution of the agreement) and the working hours reserved for the execution of the agreement shall be charged to the Other Party in their entirety. The Other Party shall undertake to pay this invoice within 14 days of the invoice date.

9.8
On dissolution of the agreement, the Other Party is liable to return all goods already delivered to Axia on the latter’s demand, without this involving any costs for Axia. Furthermore, Axia may order the immediate surrender of the goods by the person who has them. All risk with regard to the goods shall continue to be that of the Other Party, until the moment the goods have been brought under the control of Axia and approved by it.

Clause 10 – Liability

10.1
If Axia should be liable for whatever reason, such liability, which also includes any damage and costs caused by faulty goods delivered, shall explicitly be limited to the liability ensuing from this clause 10 and Axia shall not be liable to any compensation other than that ensuing from said clause.

10.2
Axia is exclusively liable for direct damage. Direct damage shall exclusively be taken to mean the reasonable costs to ascertain the cause and extent of the damage, insofar as such establishing relates to damage within the meaning of these terms and conditions, any possible reasonable costs incurred in order to make the faulty performance of Axia conform with the agreement, insofar as they can be allocated to Axia, and any reasonable costs incurred to avoid or limit damage, insofar as the Other Party demonstrates that these costs have resulted in a limitation of direct damage as referred to in these general terms and conditions.

10.3
Axia shall in no case be liable for any amount exceeding the invoice amount of the faulty goods nor for compensation of any form of indirect or consequential damage, loss of profit, lost savings and loss due to business interruption.

10.4
If and only appropriate in those cases where Axia’s liability is covered under a liability insurance taken out by Axia and the insurer makes a payment by virtue of such insurance, Axia’s liability shall never exceed, and therefore be limited to, the amount of the actual payment by the insurer.

10.5
If any of the goods shows a fault in respect of which a claim has been lodged in time, Axia shall be entitled to replace the faulty goods or to dissolve the agreement and repay the purchase price received. The option to be chosen in this respect shall be at the exclusive discretion of Axia. In that case, the Other Party shall not be entitled to any other compensation for damage or costs incurred.

10.6
Axia is not liable for damage and costs:

(i) caused because Axia proceeded from incorrect and/or incomplete information provided by or on behalf of the Other Party;

(ii) as a consequence of divergences or deviating results in the products cultivated from the goods delivered, including but not limited to divergences in growth and flowering;

(iii) arising from mistakes, incompleteness or incorrectness in the product or cultivation information and/or advice provided by or on behalf of Axia. The Other Party shall itself judge whether the goods delivered are suitable to be used for the intended cultivation or under the local circumstances respectively;

(iv) caused by force majeure; and/or

(v) caused by mistakes or omission in the execution of the agreement or the use of auxiliary goods, unless it concerns intent and/or gross negligence on the part of Axia or its employees.

10.7
Any claim to compensation by the Other Party shall lapse if the complaint periods as referred to in clause 12 have expired or when a hidden defect becomes apparent more than 60 days after the sowing date.

Clause 11 – Use and guarantees

11.1
The goods delivered are exclusively meant for the cultivation of crops destined for human or animal use and/or consumption in accordance with the product specifications as published by Axia.

11.2
The goods delivered shall in no direct or indirect way be used or offered for processing purposes or for propagation of these goods or any plants grown from them.

11.3
The products to be delivered by Axia to the Other Party meet the relevant requirements by Dutch certification bodies which prevail at such time. The product specifications given by Axia do not apply as a guarantee. Axia does not guarantee that the seeds delivered fulfil the purpose the Other Party gives it. The Other Party shall itself verify whether the goods delivered are suitable for the intended purpose and use, and whether they meet the conditions stipulated.

11.4
Germinative capacities stated by Axia are exclusively based on reproducible laboratory tests. There is no direct relation to be assumed between the indicated germinative capacity and the development of seed delivered at the Other Party. This indicated germinative capacity only indicates the germinative capacity at the time the test is carried out and for the circumstances under which the test is carried out. Development depends, among other things, on location, cultivation measures or climatic conditions at the Other Party.

11.5
No form of guarantee covers improper or incorrect use or misuse of delivered goods by the Other Party or any fault originated as a consequence of or arising from use after the expiry date, incorrect storage, repackaging or maintenance thereon by the Other Party or third parties, or in the case where the Other Party or third parties made changes to any of the goods or tried to make changes to it, attached other objects to it that are not supposed to be attached to it or if these are processed or treated in a way other than in the prescribed way. Neither is the Other Party entitled to claim under a guarantee in the case where a fault in any of the goods is originated due to or as a consequence of circumstances on which Axia cannot exert influence, including climatic conditions (such as, for example, but not limited to extreme rainfall or temperatures) et cetera.

Clause 12 – Faults and complaint periods

12.1.
The Other Party shall undertake to examine what is delivered (or have it examined) immediately at the time the goods are made available to it. In this respect, the Other Party shall verify whether the quality and/or quantity of what is delivered is in accordance with that agreed upon and meets the requirements the parties have agreed in that respect, which are:

(i) whether the correct seeds have been delivered;
(ii) whether the quantity of seeds delivered is in accordance with that agreed upon;
(iii) whether the seeds delivered meet the quality requirements agreed upon.

12.2
Initial use by the Other Party of any of the goods shall constitute acceptance. Minor divergences, among others in quality, composition and characteristics, which are unavoidable from a technical point of view or which are generally accepted, can never constitute grounds for complaint.

12.3
Any visible faults shall be reported to Axia in writing within seven days from delivery, stating the details regarding lot, delivery note and/or invoice. Any hidden faults shall be reported to Axia in writing forthwith, but in any event no later than within fourteen days, after their discovery, stating the details regarding lot, delivery note and/or invoice.

12.4
Complaints shall be described in such a manner that Axia or a third party can verify them. The report shall contain a description as detailed as possible of the fault and the place of storage or cultivation, so that Axia will be able to respond adequately. The Other Party is obliged to limit the damage in respect of which it files the complaint as far as possible. It is obliged to keep the goods about which it complains at Axia’s disposal. The Other Party shall give Axia the opportunity to investigate a complaint (or have it investigated) and is obliged to cooperate in such investigation.

12.5
Subject to the other stipulations of this clause, delivered goods cannot be returned or changed by the Other Party after opening the packaging.

12.6
If no settlement is reached between the parties with regard to a complaint as referred to in this clause, the Other Party will have an independent, officially recognized expert draw up an assessor’s report, the cost of which will be advanced by the Other Party and be at the expense of the latter, unless the rejection appears to be justified according to the assessor’s report.

12.7
If the Other Party fails to report within the periods mentioned in this clause, its complaint shall not be processed and its rights will lapse.

12.8
The payment obligation will not be suspended in the case where the Other Party files a complaint in time. In that case, the Other Party shall also remain liable to take delivery of and pay the other goods ordered.

12.9
In case of an enduring dispute between the parties about the germinative capacity, varietal identity, varietal purity and technical purity, (re-)inspection may be carried out at the request of one of the parties, by the Dutch Inspection Service for Horticulture “Nak Tuinbouw”, established in Roelofarendsveen, the Netherlands, at the expense of the party who appears to be in the wrong. The re-inspection test will be carried out on the basis of an approved sample. The result of this (re-)inspection is binding on both parties, without prejudice to the right of the parties to submit disputes about the consequences of such result to the bodies mentioned in clause 12.

12.10
If the Other Party has filed and expressed a complaint in time and with good reason, Axia shall exclusively be obliged to still deliver what is missing, replace the goods delivered, or readmit the goods of the Other Party and credit the Other Party for the relevant invoice amount. The option to be chosen in this respect shall be at the exclusive discretion of Axia. Axia shall in no way be liable for any further obligation, including compensation for other costs and/or damage.

Clause 13 – Protection (with regard to plant breeders’ rights)

13.1
Without Axia’s prior written consent, seed stock and planting material of varieties which are protected by any plant breeders’ right applied for or granted in the Netherlands and/or any other country or by means of a contractual perpetual clause, may not be:

(i) used to produce or further propagate the variety;
(ii) treated for propagation;
(iii) introduced into the market;
(iv) commercialised further;
(v) exported;
(vi) imported,
or kept in stock for any of these operations.

13.2
Any resale of the goods delivered is exclusively allowed under the relevant variety denomination and brand name.

13.3
Axia is entitled to access the place where the delivered goods are or are cultivated in order to examine them.

13.4
In case of control operations with regard to the delivered goods by any competent authority on behalf of Axia, the Other Party shall on demand provide access to its premises, crops and administration for that purpose.

13.5
In the case where the Other Party finds a mutant in a protected variety, it will communicate such immediately to Axia by registered post, after which the Other Party will provide Axia on its request with a free sample of the mutant within two months.

13.6
The Other Party needs Axia’s prior written consent for the exploitation and/or use for purposes as described in clause 13.1 and which are related to all (harvested) material of any mutant found by it.

13.7
If Axia becomes involved in legal proceedings in connection with proprietary aspects concerning plant breeders’ rights or other industrial proprietary aspects, the Other Party shall be obliged to render all cooperation requested by Axia.

Clause 14 – Applicable law and choice of forum

14.1
Dutch law applies exclusively to all agreements to which these general terms and conditions apply and the execution thereof, as well as to all non-contractual commitments arising from these agreements.

14.2
All disputes related to, arising from and/or regarding the interpretation and/or execution of the agreement will be submitted to the District Court of The Hague, the Netherlands, such after the parties have first held consultations.
14.3
Applicability of the “United Nations Convention on contracts for the International Sale of Goods” (the Vienna Sales Convention) is hereby explicitly excluded.

Clause 15 – Transfer

15.1
Axia is entitled to transfer our rights and obligations under the agreements concluded with it to another company, whether or not affiliated to it. Axia will notify the Other Party of the transfer by means of registered post. If this situation arises, the Other Party states that it will consent to such transfer.

Clause 16 – Amendments to the terms and conditions and their location

16.1
These terms and conditions are filed with the Chamber of Commerce of The Hague, the Netherlands, under no. 51496313. The most recently filed version applies.

16.2
Axia is entitled to amend these general terms and conditions. Such amendments will take effect at the announced time of entry into force. Axia shall send the amended terms and conditions in good time to the Other Party. If no time of entry into force has been communicated, amendments in respect of the Other Party shall take effect as soon as the amendment has been communicated or becomes known to it.

16.3
These general terms and conditions apply as from 1 January 2012 and shall from that moment replace all previous general terms and conditions of sale and delivery applied by Axia.