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Sugar Beet Seed Terms and conditions

Last version, 3rd of February 2023

General Terms and Conditions of Sale and Delivery for seeds

I. Applicability

(1) All deliveries, services and offers made by SESVANDERHAVE NV/SA, with registered offices Industriepark 15, 3300 Tienen, registered under company number 0431.431.749 (hereinafter referred to as the “Seller”) shall be based exclusively on these General Terms and Conditions of Sale and Delivery. These form an integral part of all contracts which the Seller concludes with its contractual partners (hereinafter also referred to as the “Buyer”) in respect of the goods and services offered by the Seller. They shall also apply to all future deliveries, services or offers to the Buyer, even if they are not separately agreed again.

(2) Terms and conditions of the Buyer or third parties shall not apply, even if the Seller does not separately object to their applicability in individual cases.

II. Offer and conclusion of contracts; contract amendments

(1) All offers of the Seller are subject to change without notice and are non-binding, unless they are expressly marked as binding or contain a specific acceptance period. The Seller may accept orders or commissions from contractual partners within ten calendar days in writing or in text form. The contract shall only come into effect with this order confirmation.

(2) The purchase agreement including these General Terms and Conditions of Sale and Delivery is only essential for the legal relations between the Seller and the Buyer. This fully reflects all agreements between the parties to the contract on the subject matter of the contract. Oral promises made by the Seller prior to the conclusion of this contract are not legally binding and oral agreements between the contracting parties are replaced by this agreement.

(3) Additions and amendments to the agreements made, including these General Terms and Conditions of Delivery, must be made in writing to be effective, whereby the text form is sufficient if a copy of the signed declaration is sent or if explicitly mentioned on the concerning invoice.

(4) The Buyer orders the seed (hereinafter also referred to as the delivery item) from the Seller in writing. The order (offer in the legal sense) must contain details of the varieties ordered as well as their equipment, number of units ordered, purchase price, terms of payment, delivery address, VAT or CVR number and the full company name of the Buyer, including the agency relationship. The Seller may specify to the Buyer that an order must be received before a certain time (date) in order to be accepted. For orders received by before a date determined by the Seller, the Buyer may be granted an early bird discount in a certain amount to be determined.

(5) The contract is only for seeds sold under the SESVANDERHAVE NV/SA trademark (limited generic debt).

III. Prices, price adjustment and payment; offsetting; right of retention

(1) The prices are valid for the scope of services and deliveries specified in the order confirmation. Additional or special services shall be charged separately. The prices are net in EURO ex WORKS from the location of the Seller, plus the statutory value added tax.

(2) Insofar as the agreed prices are based on the Seller's list prices, the Seller shall be entitled to adjust prices if circumstances change after the conclusion of the contract which were essential for the price calculation, e.g. cost increases at upstream suppliers for pickling agents (insecticide or fungicide treatment), for packaging, additionally arising taxes or fees or additionally necessary phytosanitary requirements. The extent of the price adjustment is based on the changed calculation bases, whereby changes that burden or relieve the Buyer are taken into account. A change of the profit is not carried out. If the Seller adjusts the price, he immediately has to inform the Buyer of the adjustment. If this changes the price by more than 5%, the Buyer has the right of withdrawal, which must be exercised immediately, at the latest within one week as of receipt of the notification of the price adjustment, to the Seller in writing or in text form.

(3) The Seller shall invoice the purchase price agreed for the sale and delivery of the seeds together with the delivery. Invoice amounts are due immediately and must be paid immediately without any deductions, unless otherwise agreed in writing. The date of receipt by the Seller is decisive for the date of payment. Payment рег Cheques and bills of exchange are excluded, unless separately agreed in individual cases, and are made exclusively on account of performance. If the Buyer does not make payment when due, the outstanding amounts shall bear interest of 8% р.а. as of the due date; this shall not affect the assertion of higher interest and further damages in the event of a persistent default.

(4) Offsetting with counterclaims of the Buyer or the retention of payments due to such claims is only permitted if the counterclaims are undisputed or have been legally established.

(5) The Seller is entitled to carry out or provide outstanding deliveries or services only against advance payment or provision of security if, after conclusion of the agreement, he becomes aware of circumstances that are likely to substantially reduce the creditworthiness of the Buyer and which jeopardise the payment of the Seller's outstanding claims by the Buyer from the respective contractual relationship (including from other individual orders).

IV. Delivery and delivery time

(1) Deliveries are made ex works, unless otherwise agreed.

(2) Deadlines and dates for deliveries and services promised by the Seller are always only approximate, unless a fixed deadline or date has been expressly promised or agreed. If shipment has been agreed, delivery periods and delivery dates refer to the time of transfer to the forwarding agent, carrier or other third party commissioned with the transport (hereinafter also referred to as the delivery person).

(3) The Seller shall not be liable for impossibility of delivery or for delays in delivery if these are caused by force majeure or other events that were not foreseeable at the time of conclusion of the contract and for which the Seller is not responsible. If such events make it considerably more difficult or impossible for the Seller to deliver or perform and the hindrance is not only of a temporary nature, the Seller shall be entitled to withdraw from the contract. In the event of hindrances of temporary duration, the delivery and service deadlines shall be extended or the delivery and service dates postponed by the period of the hindrance plus a reasonable start-up period. If the Buyer cannot be expected to accept the delivery as a result of the delay, he can withdraw from the contract by immediate written declaration to the Seller.

4) The Buyer is obliged to reimburse the Seller for any additional costs incurred if the delivery is delayed for reasons for which the Buyer is responsible or if the Buyer designates a delivery address other than the intended one after conclusion of the contract.

V. Place of performance, dispatch, packaging, transfer of risk

(1) The place of performance for all obligations arising from the contractual relationship is Industriepark 15, 3300 Tienen, Belgium, unless otherwise specified.

(2) The mode of dispatch and packaging are subject to the Seller's dutiful discretion. The Seller shall package the seeds ordered and hand them over to a delivery person for delivery of the seeds to the delivery address indicated by the Buyer.

(3) The risk shall pass to the Buyer at the latest when the seeds are handed over to the delivery person (the start of the loading process being essential). If dispatch or handover is delayed as a result of circumstances caused by the Buyer, the risk passes to the Buyer on the day, when the seed is ready to be dispatched the Seller has notified the Buyer of this.

VI. Quality and warranty

(1) The delivery item is certified seed of an approved variety within the meaning of the European/Community provisions on plant variety protection and the corresponding national regulation. The seed is marketed under the SESVANDERHAVE trademark. It shall be deemed to be an agreed quality pursuant to the relevant legal provisions and that the seed is marketable in accordance with the statutory provisions and meets the requirements with the applicable regulations. The seed is authentic to the variety and species.

(2) The warranty ends on 31.05. of the year following the season for which the seed is intended for sowing according to the packaging imprint, but for no longer than one year after Delivery.

(3) The delivery item must be carefully inspected immediately after delivery to the Buyer or to the third party designated by the Buyer. With regard to obvious defects or other defects that were recognisable during an immediate, careful inspection, it shall be deemed to have been approved by the Buyer if the Seller does not receive a notification of defects in writing or in text form within seven working days after delivery. With regard to other defects, the delivery shall be deemed to have been approved by the Buyer if the Seller does not receive a notice of defect in writing or in text form within seven working days of the time at which the defect became apparent; however, if the defect was already apparent to the Buyer at an earlier point in time during normal use, this earlier point in time shall be deemed to be the start of the notice period. At the request of the Seller, a delivery that is the subject of a complaint must be returned to the Seller (free shipping).

(4) In the event of material defects, the Seller shall be obliged and entitled to choose within a reasonable period of time whether to repair or replace the goods. In the event of failure, i.e. impossibility, unreasonableness, etc., the Buyer may withdraw from the contract or reduce the purchase price accordingly.

(5) The warranty shall lapse if the Buyer overlays the delivery item, i.e. does not sow the seeds in the year determined according to the packaging imprint, or has them overlaid by third parties, or stores them improperly, or has them stored by third parties, or changes them without the Seller's consent, or has them changed by third parties, and the elimination of the defect is thereby rendered impossible or unreasonably difficult.

(6) The Buyer accepts and acknowledges that the Seller may also assert against the Buyer the exceptions, exonerations and warranty limitations that any manufacturers or suppliers may invoke against the Seller. The use of the goods, their handling and storage must comply with certain requirements which are the sole professional responsibility of the Buyer. Consequently, the Buyer alone bears full responsibility for any damage that the use of the goods might cause to persons, animals, crops and any other physical or intangible property.

(7) The Buyer shall perform its obligations under these Terms and Conditions in accordance with all applicable rules. Where the Seller believes in good faith that the Buyer has breached any applicable regulations and/or principle, the Seller shall have the right to refuse an order or terminate the contract with immediate effect and without any liability for the Seller.

(8) Any information regarding the Goods given orally or in writing by the Seller is given in good faith, but cannot be considered as any warranty by the Seller as to the performance or suitability of the Goods. The performance of the Goods may depend on local climatic or other conditions. The Seller sells the Goods on the premise that the Buyer has adequately satisfied itself as to the suitability of the Goods for its needs.

(9) The Seller warrants the ownership of the Goods to be sold as well as the conformity of the Goods sold with the Seller's standard specifications and the statements in the labelling of the Goods. Except as otherwise provided in these Conditions, all warranties of any kind, whether express or implied, as to merchantability, fitness for a particular purpose or any other matter in respect of the Goods are excluded. The Buyer shall inform its customers of these exclusions of warranties, and shall not give any warranty in relation to the Goods beyond those provided in these Terms and Conditions. The Seller accepts no liability beyond the warranties set out in these Terms and Conditions, including liability to the Buyer's customers, other sellers, resellers or end-users.

VII. Liability

(1) The Seller shall not be liable for damage resulting from a defect in the goods delivered. If the Buyer claims a defect in the delivered goods, he shall submit a complaint to be submitted in accordance with articles VI and XIII (4) of these Terms and Conditions. The complaint must be described in such a way that the seller or a third party can verify it.

(2) The Buyer shall be obliged to limit as much as possible the damage in respect of which it submits a complaint to the Seller.

(3) Unless there is willful misconduct or gross negligence on the part of the Seller and/or its employees, in the event of a justified and valid complaint by the Buyer, the Seller's liability shall be limited to the amount corresponding to the invoice value or the price (excl. VAT) specified in the contract of the products and/or services in the context of which the Seller is held liable.

In any event, the Seller will never be liable for any form of indirect damage suffered by the Buyer, including, but not limited to, trading losses, consequential damage and/or loss of profits. Furthermore, the Seller shall in any case not be liable for damage resulting from alleged delays in the delivery of goods.

In addition, the Seller can under no circumstances be held jointly and severally or in solidum with third parties to compensate any damage.

VIII. Reservation of ownership

(1) The reservation of ownership agreed below serves to secure all current and future claims of the Seller against the Buyer arising from the supply relationship between the parties to the contract in respect of seeds (including balance claims from a current account relationship limited to this supply relationship).

(2) The goods delivered by the Seller to the Buyer remain the property of the Seller until the complete payment of all secured claims. The goods as well as the goods taking their place according to the following provisions and covered by the reservation of title are hereinafter referred to as "reserved goods".

(3) The Buyer shall store the goods subject to retention of ownership free of charge for the Seller.

(4) The Buyer is entitled to process and sell the goods subject to retention of title in the ordinary course of business until the event of realisation (paragraph 8). Pledging and transfer by way of security are not permitted.

(5) The Buyer hereby assigns the ownership of the plant stock from the reserved goods delivered by the Seller to the Seller as security.

(6) In the event of resale or transfer of the goods subject to retention of ownership, the Buyer hereby assigns by way of security the resulting claim against the Buyer - in the case of co-ownership of the Seller of the goods subject to retention of ownership - to the Seller. The same applies to other claims that take the place of the goods subject to retention of title or otherwise arise with regard to the goods subject to retention of title, e.g. insurance claims or claims from tort in the event of loss or destruction. The Seller irrevocably authorises the Buyer to collect the claims assigned to the Seller in his own name. The Seller may only revoke this collection authorisation in the event of realisation (paragraph 8).

(7) If third parties seize the goods subject to retention of title, in particular by attachment, the Buyer shall immediately inform them of the Seller's ownership and inform the Seller thereof in order to enable the Seller to enforce his ownership rights.

The Seller will release the goods subject to retention of ownership and the items or claims taking their place if their value exceeds the amount of the secured claims by more than 50%. The selection of the items to be released thereafter is at the discretion of the Seller.

(8) If the Seller withdraws from the contract in the event of behaviour contrary to the terms of the contract on the part of the Buyer - in particular in the event of default of payment - he is entitled to demand return of the reserved goods or to notify third parties of the ownership of the reserved goods or the ownership of the claim arising from the resale of the reserved goods and to assert this in its own name.

IX. Termination

(1) The Seller shall be entitled to terminate the order in whole or in part if it becomes wholly or partly impossible to supply the Buyer with seeds bearing the SESVANDERHAVE trademark for reasons for which he is not responsible. The Seller will inform the Buyer immediately and refund any overpayment made.

(2) The Seller is also entitled to (partially) terminate the order if the Buyer defaults on payment, he culpably breaches essential contractual obligations, he is insolvent or over-indebted within the meaning of the Book XX of the Belgian Code of Economic Law or if insolvency proceedings are opened against the Buyer or the opening is refused for lack of assets.

Х. Breeder's rights or contractual protection of plant varieties

(1) Without prejudice to applicable mandatory legislation (i.e. Title 3 of Book XI of the WER (Articles XI.104-162)), the following provisions of the following paragraphs shall apply with regard to plant variety rights or contractual protection of varieties, to the extent that no other provision has been made in a written agreement.

(2) Basic material of varieties, which have been applied for or granted Plant Breeders' Rights in Belgium and/or any other country, or which have been protected by means of a contractual chain clause, may not be used for propagation or marketing.

(3) The product, originating from the plant material delivered to the Buyer, may only be sold by the Buyer under the relevant (variety) name and, if applicable, the name of the variety or brand name.

(4) The Buyer shall at all times grant the Seller, upon request, access to the part of its business where the delivered goods are located, including in order to be able to monitor their use. The Seller will inform the Buyer of its arrival in good time.

(5) If the Buyer finds a mutant in the protected variety, he shall immediately inform the holder of Plant Breeders' Rights thereof by registered letter.

(6) If so requested, the Buyer shall make available to the Seller as soon as possible after the mutant has been found, free of charge, material from the mutant for testing purposes. If the buyer retains the mutant, the Seller shall be entitled for a period of two years after the Buyer has found the mutant to request material from the mutant. The Buyer shall be obliged to make this available to the Seller free of charge.

(7) The Buyer is in particular aware that the finder of a mutant requires the permission of the holder of Plant Breeders' Rights of the variety of which the mutant is a derived plant variety to perform the following operations in respect of all material of the variety, including harvested material (therefore also flowers, plants and parts of plants), that is to say:

a. produce or multiply;
b. conditioning for the purpose of multiplication;
c. offering for sale;
d. selling or otherwise marketing;
e. performing;
f. import;
g. storing for one of the purposes referred to under a. and f. above.

(8) The Buyer shall indemnify the Seller against all damage resulting from infringement of Plant Breeders' Rights or other intellectual property rights and/or chain clauses by the Seller in the context of acts performed in execution of the order or agreement.

(9) The Buyer shall be obliged to provide all cooperation desired by the Seller, including cooperation in gathering evidence, in the event that the Seller is involved in proceedings concerning plant variety rights or other intellectual property rights.

XI. Use of trade marks, signs and other indications

(1) Unless agreed otherwise in writing, the Buyer is not permitted to use trademarks, signs and other indications which are used by the Seller to distinguish its goods from those of other undertakings, or to use similar marks, signs and other identifiers indications, with the exception of the marketing of the goods in the original packaging on which trademarks, signs and other indications by or on behalf of the Seller itself have been affixed. The Buyer is not permitted to change, remove or alter any indication of the Seller's intellectual property rights. The purchaser is not permitted to register any trademark, design or domain name of the Seller or a similar sign in any country, anywhere in the world.

(2) In the event of resale of the delivered goods, this clause must also be imposed by the Buyer on his own Buyer under penalty of damages.

XII. Confidentiality and privacy

The content of these terms and conditions and an eventual agreement between the Buyer and the Seller is strictly confidential and shall not be disclosed to a third party without the written consent of the other party.

Each party undertakes to the other that it will keep secret and will not without the prior written consent of the other party disclose to any third party (except to its legal and professional advisors) any confidential information learned by the recipient party or disclosed to the recipient party by such other party pursuant to or otherwise in connection with these terms and conditions or an agreement.

Notwithstanding the above, none of the parties shall have the obligation hereunder to refrain from disclosing or using the confidential information for which it can reasonably prove that:

  1. it was generally available to the public at the time of its disclosure and at its free disposal;
  2. it became part of the public domain or publicly known or available by publication or otherwise, not due to any unauthorised act or omission on the part of the recipient Party or its representatives or employees;
  3. it was disclosed to the recipient party by a third party who has not derived it directly or indirectly from the disclosing Party;
  4. it was at the time of disclosure already known to the recipient Party other than as received from the disclosing Party;
  5. it is independently developed by or on behalf of the recipient party, without use of the disclosing party’s Confidential Information, as evidenced by the recipient party's business or laboratory records;
  6. the recipient party is required to disclose such confidential information to the courts of any competent jurisdiction, or to any government regulatory agency or financial authority
  7. is required to be disclosed to enable SESVANDERHAVE to verify that the information being provided by the Buyer of the goods that the Buyer is requesting SESVANDERHAVE supplies, does not infringe the intellectual property rights of a third party.

The Seller shall process any personal data received from the Buyer in accordance with its Privacy policy (https://www.sesvanderhave.com/privacy).

XIII. Final provisions

(1) If the Buyer is a merchant, a legal entity under public law or a special fund under public law or if he has no general place of jurisdiction in Belgium, the place of jurisdiction for all possible disputes arising from the business relationship between the Seller and the Buyer shall be Leuven or the Buyer's registered office at the Seller's discretion. In such cases, however, Leuven shall be the exclusive place of jurisdiction for legal action against the Seller. Mandatory statutory provisions on exclusive jurisdiction shall not be affected by these provisions.

(2) The relationship between the Seller and the Purchaser shall be governed exclusively by the laws Belgium. The United Nations Convention on Contracts for the International Sale of Goods of 11.04.1980 (CISG), the Convention on the Limitation Period in the International Sale of Goods of 14.06.1974 and its amending Protocol of 11.04.1980 shall not apply.

(3) Insofar as the purchase contract or these General Terms and Conditions of Sale and Delivery are invalid or contain loopholes, those legally effective provisions shall be deemed agreed to fill these loopholes which the contracting parties had agreed to in accordance with the economic objectives of the contract and the purpose of these General Terms and Conditions of Delivery if they had been aware of the loophole.

(4) Any question, claim or request, except for any formal notice, shall be submitted in writing (i) by email at contact@sesvanderhave.com; or (ii) via the “contact” page of the website www.sesvanderhave.com (https://www.sesvanderhave.com/contact).