Definitions
1. In these Terms and Conditions, the following words shall have the following meanings.
“Company” means Rijk Zwaan UK Ltd.
“Customer” means the customer of the Company.
“Contract” means any contract for the sale of Goods by the Company to the Customer.
“Goods” means any goods forming the subject of any Contract including component parts or materials incorporated in them, but shall typically be seeds.

Applicability
2.1 These Terms and Conditions shall be applicable to each offer made by the Company and each contract made between the Company and the Customer, save in respect of the latter where otherwise expressly agreed in writing by the parties.

2.2 These Terms and Conditions shall be incorporated into each offer made by the Company and each contract made between the Company and Customer, to the exclusion of any terms and conditions stipulated or referred to by the Customer.

Offers, orders and agreements
3.1 A Contract shall be formed between Company and Customer upon the acceptance of an offer by the giving or sending of an order by the Customer (which shall in itself constitute an acceptance of these Terms and Conditions by the Customer), subject to the Company’s right to revoke any offer made by it up to 3 working days from receipt of the order.

3.2 In the event that the quantity ordered by the Customer differs from the Company’s standard packing unit or its multiple, the Company shall be free to supply the next higher quantity and charge accordingly.

3.3 It is the Customer’s duty, when placing any order or when requested to by the Company, to specify in writing any particular documentation that is required in order for the Goods to comply with the statutory and/or regulatory requirements of the country to which the Goods are to be delivered, including (but not limited to) any necessary:
- invoicing documents;
- documents in respect of phytosanitary requirements;
- international certificates;
- import documents or statements.

Prices
4.1 All prices are for net weights.

4.2 All prices quoted by the Company are subject to alteration without notice. In the event of a new price being quoted to the Customer, that shall supersede any earlier price quoted and apply to all orders placed after notification of the new price to the Customer.

Carriage
5.1 Unless stated otherwise, prices are inclusive of packing and delivery within England, Scotland and Wales.

5.2 Orders for less than £150 are despatched by first class post, unless the Customer is notified otherwise, and the cost of postage shall be met by the Customer.

5.3 The Company reserves the right to charge in respect of carriage where the order weighs 10kg or more, in which event the charge shall be made at cost.

5.4 Any extra costs incurred by the Company as a result of special demands made by the Customer concerning transportation will be charged to the Customer.

Damage, delay or loss in transit
6.1 The Company shall endeavour to deliver all Goods on the delivery date, provided a sufficient quantity of the ordered Goods is available to it, but cannot guarantee delivery within a specified time period and/or on a specified date.

6.2 All deliveries are subject to the usual crop and processing reservation. In the event that the Company makes a justified appeal to the crop and processing reservation, the Company is not obliged to deliver but will endeavour to deliver pro-rata quantities or comparable alternatives. In the event the Company makes an appeal to this reservation, the Customer is not entitled to any indemnity or compensation whatsoever.

6.3 The Goods are deemed to be delivered to the Customer when the Company makes them available to the Customer or any agent or carrier of the Customer.

6.4 The Customer shall on delivery of the Goods carefully inspect the same for any damage or loss and in the event of either or both, where necessary:
- sign any delivery documentation “Damage in Transit”;
- notify the Company of such immediately by telephone; and
- confirm by return first class post to the Company.

6.5 Risk in the Goods passes when they are delivered in accordance with clause 6.3.

6.6 The Company may deliver to the Customer and the Customer shall accept in satisfaction of the Contract a lesser quantity than the quantity of Goods ordered.

6.7 If the Customer fails:
- to take delivery of the Goods or any part of them; and / or
- to provide any instructions or documents required to enable the Goods to be delivered,
the Company may on giving written notice to the Customer store or arrange for the storage of the Goods, and on the service of the notice:
- risk in the Goods shall pass to the Customer;
- delivery of the Goods shall be deemed to have taken place; and
- the Customer shall pay to the Company all costs and expenses including storage, any redelivery and insurance charges arising from its failure.

6.8 The Company shall not be liable for any penalty, loss, injury, damage or expense arising from any delay or failure in delivery or performance from any cause at all nor shall any such delay or failure entitle the Customer to refuse to accept any delivery or performance of or repudiate the Contract.

6.9 The Company is allowed to effect partial deliveries of the goods. This will not be applicable, however, if a partial delivery has no independent value. In the event of partial deliveries, the seller is entitled to invoice each delivery separately.

Returned Goods
7.1 At the Company’s absolute discretion, the Customer may be permitted to return surplus Goods and receive a credit note in return.

7.2 The Company will only consider exercising the discretion at clause 7.1 if:
- the Company’s prior written permission for return of the Goods is obtained;
- the Goods are returned in their original packaging, seals unbroken and without any damage of any kind;
- the Goods are returned to the Company within 5 working days of delivery, quoting the original invoice number;
- and the Goods themselves were not specifically ordered.

7.3 Any return of surplus Goods by the Customer to the Company shall be subject to a handling charge and the cost of shipment shall be met by the Customer.

Title
8.1 Notwithstanding the earlier passing of risk, title in the Goods shall remain with the Company and shall not pass to the Customer until the amount due under the invoice for them (including interest and costs) has been paid in full. The Customer does not have the right to claim any means of compensation. The retention of title is also extended to claims that the Company might obtain against the Customer on account of the Customer’s failure to meet one or more of its obligations towards the Company.

8.2 Until title passes the Customer shall hold the Goods as bailee for the Company and store or mark the Goods so that they can at all times be identified as the property of the Company. The Customer shall not pledge the Goods in any way or allow any other claim on them. In the event of any resale of the Goods, the Customer shall ensure that the Goods are subject to a retention of title in favour of the Company.

Payment
9.1 Payment shall be made within 28 days of the date of the invoice. In the event of default, interest shall accrue on the outstanding amount at the rate of 2% per month, although the Company reserves the right to vary the interest rate charged.

9.2 The Company reserves the right to pass any outstanding account to its Solicitors, [Wood Sherwood, 6-10 Railway Street, Pocklington, York YO42 2QZ] or any other third party, as and when it deems it appropriate, in which event a £50 administrative charge shall become immediately payable, together with all legal costs as they become incurred.

9.3 In the event that the parties agree a scheme of partial payments extending over a period of time, any default by the Customer shall trigger an obligation to pay the total amount outstanding under the Contract immediately. The last sentence of paragraph 9.1 will be applicable accordingly.

9.4 The Company reserves the right to withhold all deliveries to the Customer under all Contracts until such time as all and any outstanding payments owed by the Customer to the Company under any other Contract are made. The Company shall have a lien over all Goods the subject of a Contract between it and the Customer, in whosever possession the Goods may be, until such time as all and any outstanding payments are made.

Complaints
10.1 The Customer shall examine the Goods on delivery, or as soon as possible thereafter, and shall inform the Company in writing within 6 days of delivery in the event of any of the following:
- The incorrect Goods having been delivered;
- The incorrect quantity of Goods having been delivered;
- Complaints in relation to the defective packaging of the Goods.

10.2 Any complaint in relation to defects in the Goods, trueness to variety, varietal purity and/or the germination of the Goods shall be submitted by the Customer to the Company in writing within 8 days of delivery, save in the case of defects that were not apparent on delivery in which case the complaint must be made within 8 days of the defect being discovered or could have reasonably been discovered.

10.3 Any complaint must be in writing and shall include batch, delivery and invoice details. The Customer shall also specify the circumstances in which the Goods have been used since delivery and, in the event of any resale of the Goods by the Customer, the identity of the purchaser.

10.4 Any complaint in relation to an invoice of the Company shall be submitted by the Customer to the Company in writing within 14 days of the date of the invoice.

10.5 The Customer’s obligations in respect of payment shall not be varied or altered in any way by the fact of submission of a complaint.

10.6 No complaint in respect of the performance of Goods shall be considered by the Company unless the Customer is able to establish to the Company’s satisfaction that the seed grown and alleged to have performed unsatisfactorily was in fact Goods supplied by the Company, sown on suitably prepared ground, treated carefully and correctly throughout and subject only to such conditions as were likely to produce a favourable crop.

10.7 Any failure by the Customer to comply with any aspect of the complaint procedure, as set out in clauses 10.1 to 10.6 above, shall preclude the Customer from making any claim in respect of the Goods against the Company.

10.8 In case of a permanent dispute between the parties about germination, trueness to type, varietal purity, technical purity or health, an assessment may be performed at the request of either the Customer and/or the Company by the Naktuinbouw (ISTA station), in Roelofarendsveen, The Netherlands, or by another objective and independent body as agreed upon by the Customer and the Company, for the account of the unsuccessful party. In case of a dispute about health, application of ISHI (International Seed Health Initiative) accepted methods is preferred. The outcome of the assessment will be binding on both parties, notwithstanding the right of parties concerned to submit to the authorities referred to in article 19 any disputes about the consequences of this outcome.

Warranties
11.1 The Company warrants that the Goods delivered to the Customer:
- Comply, at the time of delivery, with the UK Seeds Regulations in force at that time;
- Conform, to the best of the Company’s ability, to any description given by it concerning the Goods;
The Company shall also endeavour (but not warrant or guarantee) to notify the Customer should any Goods delivered to it not comply with their product specification in the Company’s catalogue for that season.

11.2 The Company does not guarantee, represent or offer any warranty whatsoever in respect of the following:
- That the Goods will necessarily be fit for the Customer’s intended purpose. The Customer shall satisfy itself that the Goods ordered are of a variety and performance satisfactory for its requirements and shall be deemed to have ordered the same at its own risk;
- That the Goods will produce the results indicated by any germination figures, general guidance, tests, quality data or other literature supplied by the Company in respect of those Goods, the Customer acknowledging that results will depend on a variety of factors including location, cultivation measures and climatic circumstances;
- That use of the Goods does not infringe any intellectual property rights of third parties.

11.3 The Company shall endeavour to deliver Goods that are free from any latent defects but it cannot guarantee or warrant in any way that such will be the case and it is not a condition of sale that the Goods will be free from any latent defect.

11.4 Any and all warranties under clause 11.1 above shall lapse in the event that the Customer:
- carries out or causes to be carried out any process on or repackaging of the Goods;
- uses or stores the Goods incorrectly or causes them to be used or stored incorrectly.

Advices for cultural practices, variety descriptions, recommendations
12.1 Cultural advices from the Company are without engagement. Cultural advices, descriptions, recommendations and illustrations in whatever form are based as precisely as possible on experiences in trials and in practice. However, the Company cannot accept in any case liability on the basis of such information for deviating results in the grown goods. The Customer itself will be deemed to determine whether the Goods are suitable to be used for the intended cultivations and under the local conditions.

12.2 As used in the information supplied by the Company, “immunity, resistance and susceptibility” shall mean the following:
- “Immunity”: not subject to attack by a specified pest or pathogen.
- “Resistance”: is the ability of a plant variety to limit growth and development of specified pest or pathogen and/or damage they cause when compared to susceptible plant varieties under similar environmental conditions and pest or pathogen pressure. Resistance varieties may exhibit some disease symptoms or damage under heavy pest or pathogen pressure. 2 levels of resistance are defined:
(i) 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.
(ii) 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 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.

Special Treatments
13.1 In the event that Goods are specially treated or tested at the Customer’s request, the Company accepts no responsibility and makes no warranty whatsoever for the effectiveness of any such treatment or testing. The Company’s liability shall be limited to such treatment being carried out in the correct manner and/or in accordance with the instructions given by the manufacturer of the chemical in question.
13.2 The Company shall not be responsible for any damage, direct or consequential, caused to the Goods in the course of any treatment or testing carried out at the Customer’s request.

13.3 In the event that treatment or testing reveals that the Goods are, in the opinion of the Company, defective, the Company will at its option either replace the Goods or refund all payments made in respect of the same, but that shall be the extent of its liability.

13.4 The purity and germination percentages are based on tests carried out prior to any such treatment being applied.

Liability
14.1 If, in the Company’s opinion, a complaint by the Customer, made in accordance with clauses 10.1 to 10.7 above, is justified, the Company will at its option make good the damage to the Goods, provide a refund or replace the Goods, provided always that the Customer fully cooperates with the Company and takes all possible steps to mitigate its losses.

14.2 The Company shall not be liable for any damage suffered by the Customer caused by or in any way related to defective Goods, save to the extent that such damage is proven to have been caused by the Company intentionally or as a result of its gross negligence.

14.3 If the Company is liable for any damage incurred by the Customer, the Company’s liability shall be limited to the amount of the invoice (excluding VAT) charged to the Customer in respect of the delivery concerned. The Company shall not in any circumstances be liable for any indirect damage suffered by the Customer or any third party, including consequential damage or loss of profit.

14.4 The Customer shall indemnify the Company against all claims and rights from third parties for compensation for damage allegedly caused or in any way associated with the Goods, save to the extent that any such claims or damages as are satisfactorily proven are also proven to have been caused by the Company intentionally or as a result of its gross negligence.

14.5 The Customer shall at all times have in place adequate insurance in respect of the indemnity given in clause 14.4 and shall submit details in respect of the same upon the first request of the Company.

Time Limits
15.1 Any potential claim for compensation or complaint based on these Terms and Conditions shall expire in the event that no claim has been issued in writing against the Company within 12 months of the delivery of the Goods.

Further use/cultivation
16.1 All Goods are sold for the purpose of production of agricultural and horticultural crops, destined for human or animal consumption.

16.2 The Customer shall not:
- Use, cause or permit the Goods to be used for further propagation, reproduction of propagation material and/or seed production;
- Pellet or cause or permit the Goods to be pelleted without the Company’s express written agreement;
- Offer the Goods for resale under any different name to that under which the Goods have been sold by the Company;
- Use trademarks, copyright material, intellectual property rights, logos, signs resembling them and other signs belonging to or otherwise used by the Company, save that Customer is entitled to trade or sell on the Goods in their original packaging;
- Use seeds of original varieties, which are protected by Plant Breeders’ Rights or by nameright, in anything other than the Customer’s own country.

16.3 Any Customer who trades or sells on the Goods to third parties shall impose each provision within clause 16.2 above as conditions of sale.

16.4 All test results, designs, specifications and data supplied by the Company shall remain its property and all knowledge and other technical information, patentable or unpatentable, copyright and registered designs and all other intellectual property rights arising from the execution of any orders shall become the property of the Company. An offer made to the Customer or a sales agreement between the Company and the Customer does not imply and may not be interpreted by any means as an implied license to the Customer with regard to any intellectual property on the goods offered or sold.

16.5 The Customer shall allow the Company and its agents or contractors direct access to its business, including greenhouses, in order that the Company can carry out or have carried out on its behalf inspections. “Business” in this clause 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 materials.

Force majeure
17.1 The Company shall not be liable for any failure in the performance of any of its obligations under these Terms and Conditions caused by factors outside its control. If such circumstances continue for a continuous period of more than 2 months, either party may terminate the Contract by written notice to the other party. In this event, the Company will not be liable to the Customer whether under clause 14.2 or otherwise.

Insolvency
18.1 If the Customer :
(a) has a Receiver or Liquidator appointed to any of its property or business undertaking; or
(b) announces that it is ceasing to trade; or
(c) fails to make a payment as due, suspends payment and/or notifies his creditors that he is unable to meet debts or that he is about to suspend payment of his debts; or
(d) convenes, calls or holds a meeting of creditors or makes any arrangement, voluntary arrangement or composition with its creditors; or
if:
(e) the directors of one party make or state an intention to make or give notice of a proposal for voluntary arrangement under Part 1 of the Insolvency Act 1986; or
(f) a petition is presented for winding up or administration of one party; or
(g) a resolution is passed for the voluntary winding up of one party; or
(h) one party is dissolved; or
(i) a statutory demand in bankruptcy is served on one party; or
(j) an interim order under Part VIII of the Insolvency Act 1986 is applied for or made in respect of one party; or
(k) a bankruptcy petition is presented against one party; or
(l) a party suffers the levy or enforcement of any execution, distress, sequestration, detention or other process on any of its property or premises; or
(m) a party being a partnership, any of the above events occurs with respect to the partnership or to any partner therein then:
the full or full remaining price for any Goods delivered by the Company shall become immediately due to it and the Company shall have the right to terminate the Contract forthwith. In these circumstances, the Company will not be liable to pay any compensation to the Customer.

Disputes
19.1 The parties shall in the first instance seek to resolve any disputes that may arise from offers and contracts to which these Terms and Conditions apply between themselves.

19.2 In the event that a dispute cannot be resolved by the parties themselves, both parties will subject themselves to the judgment of an arbitration committee, which is appointed by and conforms with the BSPB Rules.

Governing law
20.1 These Terms and Conditions and any contracts made by the parties are governed by English law.

Enforceability
21.1 If a provision of these Terms and Conditions is invalid, that provision will automatically be replaced by a valid provision that corresponds as closely as possible to the purport of the invalid provision.

21.2 In the event of a provision being invalid, the other provisions of the Terms and Conditions will remain fully valid in so far as possible.

ISF Rules and Usages
22.1 In the event that these Terms and Conditions do not contain any rules with regard to a specific topic, all transactions between the Company and the Customer shall for that topic be subject to the International Seed Federation (ISF) Rules and Usages for the Trade in Seeds for Sowing Purposes (ISF Rules and Usages), unless the ISF Rules and Usages deviate from the purport of these terms and conditions. The applicable edition of the ISF Rules and Usages is the edition that is valid at the moment the Company has made the relevant offer or the parties have entered into the Contract.

ADDITIONAL CONDITIONS FOR THE SALE OF SEEDS PER SQUARE METRE TO GROWERS
Amount
23.1 The amount of seeds to be bought will be determined following consultation between the production advisor of the Company and the Customer. This amount will be mentioned in the order form. To determine the amount of seeds required, the number of square metres on which the Customer will grow plants shall be determined first and shall also be shown on the order form. The starting point shall be a maximum of 2.5 plants per square metre, unless expressly agreed otherwise by the parties and duly noted in the order form. Any deviation from 2.5 plants per square metre may have consequences for the price per net square metre (see below).

Payment
24.1 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.

24.2 Invoicing for the amount due for the seeds will take place in one instalment upon delivery.

Use of seeds
25.1 The Customer shall use or cause to use the seeds for one production of plants on the number of square metres and in the growing period as included in the order form. In the event that a variety is grown on more square metres than the square metres agreed upon, the Customer shall pay to the Company twice the price as mentioned in 24.1 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, the Company shall collect those seeds.

25.2 The Customer shall not provide the seeds or any other material of a variety in whatever form to third parties. The 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 the 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 the Customer.