Sales conditions

GENERAL TERMS AND CONDITIONS OF SALE OF RIJK ZWAAN USA, Inc.

The Customer’s attention is drawn in particular to the provisions of clause 14.

Definitions and interpretation

1.1          In these Terms and Conditions, the following words shall have the following meanings.

“Company” means Rijk Zwaan USA, Inc. a California Corporation  whose registered office address is 701 La Guardia Street Suite A, Salinas, CA 93905.

“Customer” means the person or firm who purchases the Goods from 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.

 

1.2          In these Terms and Conditions the following rules shall apply:

(a)          Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular and a reference to one gender shall include a reference to the other genders.

(b)          A ‘person’ includes a natural person, corporate or unincorporated body (whether or not having a separate legal personality).

(c)          A reference to ‘writing’ or ‘written’ includes fax and e-mail.

(d)          A reference to a party includes its personal representatives, successors or permitted assigns.

(e)          Any phrase introduced by the terms ‘including’, ‘include’, ‘in particular’ or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.

(f)           Any obligation on a party not to do something includes an obligation not to allow that thing to be done.  

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, in precedence to and to the exclusion of any terms and conditions stipulated or referred to by the Customer.

Offers, orders and the Contract

3.1          A Contract shall be formed between Company and Customer upon the acceptance of an order by the Customer whether made by telephone in writing (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          The Contract constitutes the entire agreement between the parties.  The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the Company which is not set out in the Contract.

3.3          In the event that the quantity of Goods ordered by the Customer differs from the Company’s standard packing unit or it’s multiple, the Company shall be free to supply the next nearest quantity (be it higher or lower) and charge accordingly.

3.4          It is the Customer’s duty, when placing an order or when requested to do so 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.

3.5          Termination of the Contract, however arising, shall not affect any of the parties' rights and remedies that have accrued as at termination.  Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.

Prices

4.1          Prices will be on TPC (thousand pieces), MPC (million pieces), PC (pieces) or net weight basis.

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 will supersede any earlier price quoted and apply to all orders placed after notification of the new price to the Customer.

4.3          The price of the Goods is exclusive of amounts in respect of value added tax (VAT).  The Customer shall, on receipt of a valid VAT invoice from the Company, pay to the Company such additional amounts in respect of VAT as are chargeable on the supply of the Goods.

Carriage

5.1          Unless stated otherwise, prices are inclusive of packing and delivery within the United States.

5.2          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:

(a)          sign any delivery documentation “Damage in Transit”;

(b)          notify the Company of such immediately by telephone; and

(c)          confirm by e-mail to the Company with attached photographic evidence

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:

(a)          to take delivery of the Goods or any part of them; and / or

(b)          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 that written notice:

(a)          risk in the Goods shall pass to the Customer;

(b)          delivery of the Goods shall be deemed to have taken place; and

(c)          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 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:

(a)          the Company’s prior written permission for return of the Goods is obtained;

(b)          the Goods are returned in their original packaging, seals unbroken and without damage of any kind (including writing or sticker damage);

(c)          the Goods are returned to the Company within 5 working days of notification of the expected return, together with a completed Seed Return Form; and

(d)          the Goods themselves were not specifically ordered

7.3          The carriage cost of returning any surplus Goods to the Company shall be met by the Customer.

7.4          The Company’s standard terms for crediting returned Goods are:

(a)          Goods returned within 1 month of delivery to the Customer will be credited 100%

(b)          Goods returned between 1 month and 6 months of delivery to the Customer will be credited by 75%

(c)          No credit will be given for Goods returned more than 6 months after delivery to the Customer; and

(d)          No credit will be given for Goods with a priming treatment and/or Goods that have been treated with insecticide  

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 those Goods (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 have against the Customer arising from 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 retention of title in favour of the Company.

Payment

9.1          Payment shall be made by the date stipulated on the Company’s invoice to the Customer.  In the event of default, interest shall accrue at a daily rate on the outstanding amount at the rate of 4% per annum above the base lending rate of Rabo Bank.

9.2          The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). The Company may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by the Company to the Customer.

9.3          The Company reserves the right to pass recovery of any outstanding invoices to its Solicitors or a debt recovery agency as and when it deems it appropriate, in which event a $50.00 administration charge shall become payable by the Customer to the Company.

9.4          Should court proceedings become necessary to recover any outstanding payment for Goods from the Customer, then the Customer shall be contractually responsible to pay the Company’s reasonable legal costs of those court proceedings on a indemnity basis, to the intent that this clause shall take precedence over any limitation in the relevant court rules as to recoverability of legal costs that would otherwise apply.

9.5          In the event that the parties agree a scheme of instalment payments extending over a period of time, then any default by the Customer in paying an agreed instalment on its due date shall trigger an obligation on the part of the Customer to pay the full balance then outstanding to the Company (together with any accrued interest thereon) immediately. 

9.6          The Company reserves the right to withhold further deliveries to the Customer under all Contracts with the Customer until such time as all and any outstanding payments owed by the Customer to the Company under all Contracts have been made in full

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 3 working days of delivery in the event of any of the following:

(a)          The incorrect Goods having been delivered;

(b)          The incorrect quantity of the Goods delivered;

(c)          Complaints in relation to the defective packaging of the Goods delivered.

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 7 working days of delivery, save in the case of defects that were not apparent on delivery in which case the complaint must be made within 7 working days of the defect being discovered or having become reasonably apparent, whichever is the sooner.

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       Failure by the Customer to comply with the complaints 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 the case of an unresolved 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 are preferred.  The outcome of the assessment will be binding on both parties, notwithstanding the right of the 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 will conform, to the best of the Company’s ability, to any description given by it concerning the Goods.

11.2       The Company does not guarantee, represent or offer any warranty whatsoever in respect of the following:

(a)          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; and

(b)          That the Goods will produce the results indicated by any 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.

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 warranty given by the Company shall lapse in the event that the Customer:

(a)          carries out or causes to be carried out any process on or repackaging of the Goods;

(b)          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:

(a)          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.

(b)          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(s) 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 discretion either replace the Goods or refund all payments made in respect of the same, but that shall be the full extent of the Company’s liability in relation to those specially treated Goods.

13.4       Any purity and/or germination percentages provided by the Company are based upon tests carried out to the Goods prior to any special treatments being applied. 

Liability

14.1       Nothing in these Terms and Conditions shall limit or exclude the Company’s liability for: 

(a)          death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);

(b)          fraud or fraudulent misrepresentation;

(c)          breach of the terms implied by section 12 of the Sale of Goods Act 1979;

(d)          defective products under the Consumer Protection Act 1987; or

(e)          any matter in respect of which it would be unlawful for the Company to exclude or restrict liability.

14.2       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 discretion 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 reasonable steps to mitigate its loss.

14.3       The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.

14.4       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 either intentionally or as a result of its gross negligence. 

14.5       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) for the relevant Goods charged to the Customer in respect of the delivery concerned. 

14.6       The Company shall not in any circumstances be liable for any indirect damage suffered by the Customer or any third party, including any consequential damage or loss of profit.

14.7       The Customer shall indemnify the Company against all claims 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 are for claimable loss that is proven to have been caused by the Company intentionally or as a result of its gross negligence.

14.8       The Customer shall at all times have in place adequate insurance in respect of the indemnity given to the Company in clause 14.4 and shall provide evidence that such insurance is in place  if called upon to do so by the Company.  

Time Limits

15.1       Any potential claim for compensation in relation to Goods supplied by the Company must be made by the Customer in writing to the Company within 12 months of the delivery of the Goods, failing which the Company shall be legally entitled to reject that claim in its entirety as having been made out of time.

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:

(a)          Use, cause or permit the Goods to be used for further propagation, reproduction of propagation material and/or seed production;

(b)          Pellet or cause or permit the Goods to be pelleted without the Company’s express written agreement;

(c)          Offer the Goods for resale under any different name to that under which the Goods have been sold by the Company;

(d)          Use trademarks, copyright material, intellectual property rights, logos, signs resembling them and/or 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;

(e)          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 the conditions of such 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 and/or remain the property of the Company.  Save as specified in these Terms and Conditions, an offer made to the Customer or a sales agreement between the Company and the Customer will not imply and may not be interpreted as constituting an implied license to the Customer to use the Company’s intellectual property rights in 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 the Contract 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       This clause is to be read in conjunction with and subject to the provisions of clause 10 in relation to complaints and in particular clause 10.8 in relation to disputes about germination, trueness to type, varietal purity, technical purity or health.

19.2       The parties shall in the first instance seek to resolve any disputes that may arise from any offers or Contract between themselves.

19.3       If any dispute arises in connection with a Contract, the directors or other senior representatives of the parties with authority to settle the dispute will, within 14 days of a written request from one party to the other, meet in a good faith effort to resolve the dispute.

19.4       If the dispute is not resolved at that meeting, the parties will attempt to settle it by mediation in accordance with the CEDR Model Mediation Procedure.  Unless otherwise agreed between the parties, the mediator will be nominated by CEDR. 

19.5       To initiate the mediation a party must give notice in writing ('ADR notice') to the other party to the dispute requesting mediation.  A copy of the request should be sent to CEDR Solve.  The mediation will start not later than 28 days after the date of the ADR notice.

19.6       No party may commence any court proceedings in relation to any dispute arising out of a Contract until it has attempted to settle the dispute by mediation and either the mediation has terminated or the other party has failed to participate in the mediation, provided that the right to issue proceedings is not prejudiced by a delay.

General

(a) Notices.

20.1       Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service, commercial courier, fax or e-mail.

20.2       A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 20.1; if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or, if sent by by fax or e-mail, one Business Day after transmission.

20.3       The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.

(b) Severance.

20.4       If any provision or part-provision of these Terms and Conditions is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable.  If such modification is not possible, the relevant provision or part-provision shall be deemed deleted.  Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of these Terms and Conditions.

20.5       If any provision or part-provision of these Terms and Conditions is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.

(c) Waiver.

20.6       A waiver of any right or remedy under the these Terms and Condition in law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default.  No failure or delay by a party to exercise any right or remedy provided under these Terms and Conditions or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.  No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

(d) Third party rights.

20.7       A person who is not a party to the Contract shall not have any rights to enforce its terms.

(e) Variation.

20.8       Except as set out in these Terms and Conditions, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is in writing and signed by the Company.

(f) Governing law

20.9       The Contract, these Terms and Conditions and any dispute or claim arising out of or in connection with them or their subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with the law of England and Wales.

(g) Jurisdiction.

20.10     Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Contract, these Terms and Conditions or their subject matter or formation (including non-contractual disputes or claims).  

ISF Rules and Usages

21.1       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 time the Company made the relevant offer or the parties entered into the relevant Contract.

ADDITIONAL CONDITIONS FOR THE SALE OF SEEDS PER SQUARE METRE TO GROWERS

Amount

22           The amount of seeds to be supplied will be determined following consultation between the production advisor of the Company and the Customer.  This amount will be mentioned in the Contract.  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 Contract.  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 Contract.  Any deviation from 2.5 plants per square metre may have consequences for the price per net square metre (see below).

Payment

23.1       The price per net square metre as included in the Contract is valid for one growing period as indicated in the Contract.  “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.

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

Use of seeds

24.1       The Customer shall use or cause to use the seeds for one production of plants on the number of acres and in the growing period as included in the Contract.  In the event that a variety is grown on more acres than the acres agreed upon, the Customer shall pay to the Company twice the price as mentioned in 24.1 for each acre that exceeds the number of acres as agreed upon.  In case seeds remain after the period in which plants have been raised, the Company shall collect those seeds.

24.2       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:

(a)          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 detailed in the Contract, and

(b)          the plant raiser delivers all the remaining seeds and all young plants that were grown out of the seeds to the Customer.