GENERAL TERMS AND CONDITIONS OF SALE OF SAKATA VEGETABLES EUROPE S.A.S.

January 2013

 

Application of terms and conditions: These terms and conditions of sale (“Terms”) cancel and replace all previous sales conditions of Sakata Vegetables Europe S.A.S. (“Sakata”) including terms and conditions published prior to 1st April 2010.

 

These Terms shall exclusively apply to any sale of Sakata, to the exclusion of all other terms and conditions (including any terms or conditions which purchaser purports to apply under any purchase order, confirmation of order or similar documents) unless otherwise expressly agreed in writing.

 

The FIS/RUSPO conditions for seed sales are applicable insofar as they are not conflicting with these Terms.

 

Nothing in these Terms shall be construed so as to require the violation of any law, and wherever there is any conflict between any provision of these Terms and any law, the law shall prevail, but in such event the affected provision of these Terms shall be affected only to the extent necessary to bring it within the applicable law.

In addition, should a stipulation be declared null and void by a court or any other competent jurisdiction, such a decision will affect in no way the validity of the others stipulations.

 

No waiver with respect to any breach or default or to any right or remedy as indicated in these Terms, shall be deemed to constitute a continuing waiver of any other breach or default or of any right or remedy, unless such waiver is expressed in writing and signed by Sakata. Similarly, failure of Sakata to exercise any right in accordance with these Terms shall not be deemed to constitute a waiver of such right or rights in the future.

 

All seeds are offered and sold for the production of consumer crops. It is prohibited to use the seeds or resultant crop plants for the production or reproduction of propagating material. The purchaser is obliged to allow Sakata or a third party that carries out inspections on behalf of Sakata direct access to the business of the purchaser (including amongst others and in particular to the greenhouses of its business) for inspections in case there is an assumption of illegal production and/or reproduction of propagating material. The purchaser shall upon request also allow access to his records and accounts that are relevant to the aforementioned inspections. The purchaser shall impose the aforementioned obligations to his own customers.

 

Orders: Placing an order with Sakata constitutes an offer to purchase seeds and is subject to these Terms. An order is confirmed only when Sakata issues an official confirmation or a pro-forma invoice and will only then be binding.

However, the sale contract will be presumed to be legally formed in the absence of an official confirmation by the delivery of the seeds.

 

All orders are subject to availability of the seeds, which is dependent on crop and processing results. If there is no or reduced availability of the seeds for any reason following receipt of the purchaser’s order, Sakata shall be entitled either to cancel the order or to allocate the available seeds at its discretion and in this last case the purchaser’s order shall be deemed to be reduced to the quantity Sakata actually delivers and Sakata shall not be liable to the purchaser in connection with such reduced supply nor in case of order cancellation by Sakata.

 

The purchaser cannot assign the benefit of the order to a third party without Sakata previous agreement.

 

Delivery: The seeds shall be delivered by Sakata to nominated delivery points previously agreed in writing by the purchaser.

 

Any dates specified for the delivery of the seeds are approximate only. If no dates are so specified delivery will be within a reasonable time in conformity with the sowing or planting season. Time of delivery shall not be of the essence of the contract. Subject to the other provisions of these Terms, Sakata will not be liable for any loss (including loss of profit), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of seeds (even if caused by Sakata’s negligence).

 

Sakata is entitled to deliver the seeds in instalments. Where the seeds are delivered in instalments, failure by Sakata to deliver any one or more of the instalments in accordance with these Terms or any claim by the purchaser in respect of any one or more of the instalments shall not entitled the purchaser to treat the contract as a whole as terminated.

 

Shipping instructions: The purchaser is requested to forward clear shipping and forwarding instructions with his order designating the route which will be followed as far as possible; otherwise Sakata’s best judgment will be used in selecting carriers and routes.

 

Transfer of risks: Notwithstanding the retention of title clause hereafter mentioned, the purchaser bears full liability for all direct and/or indirect risks (in particular damage to or loss of the seeds) associated with the seeds at the time the seeds are delivered to the delivery point agreed between the parties or deemed to be delivered (whichever is earlier), unless otherwise agreed by the parties.

 

Prices: All prices are stipulated in Euro currency exclusive of V.A.T as set out in Sakata’s price lists and are inclusive of the cost of carriage to a destination within metropolitan France PROVIDED HOWEVER that where the value of the Contract is less than 150 €, Sakata may charge the purchaser for the full cost of carriage.

 

Where the place of delivery required by the purchaser is outside metropolitan France, Sakata may charge the purchaser for the full cost of delivery to such place of delivery.

 

All prices are subject to change by Sakata without prior notice to the purchaser in case of external factors impacting the prices, such as (but not limited to) changes of market conditions, price increases of raw materials, exchange rate movements…….

 

Minimum values/charges: Sakata will apply a minimum value of Euro 150.00 per invoice.

 

Sakata uses as incoterm for all contract of sale concluded under the present Terms and Conditions, the Ex Works incoterm - as defined by the ICC Official Rules for the Interpretation of Trade Terms, except if otherwise expressly agreed or defined by Sakata.

 

Documentation: Special documentation, special certificates, consular fees, ISTA Analysis Certificates etc. are charged to the purchaser at cost price.

 

Packages: All Sakata standard packages are described in the Sakata catalogue. Any other package ordered which is not included in this document will be charged with 10% extra costs and are subject to extra delay in shipment.

 

Payment: All invoices must be paid in accordance with the terms of the said invoice. In case of late payment, penalties will be charged, in accordance with French legislation, at minimum three times the official French interest rate to the amount owed inclusive of VAT for each day in which invoices remain unpaid as of the due payment date until payment is in full made by the purchaser. In accordance with Article L441-6 of the French Commercial Code, in case of delay in payment, a fixed compensation of € 40 for recovery costs is systematically due to the creditor.

 

Retention of title clause: Sakata expressly retains ownership of the seeds until Sakata has received in full the price invoiced to the purchaser. If any payment problem arises, i.e. problem of partial or total non-payment of an invoice by the due date, irrespective of whether or not this is associated with the appointment of a provisional liquidator or with the legal liquidation of the purchaser, Sakata reserves the option of requesting that the seeds delivered be returned, regardless of their location, at the purchaser’s expense and risks, without prior formal notice. The purchaser therefore undertakes not to grant to any third party rights likely to impede the application of this clause. He also undertakes to inform his own customers that the resold seeds are subject to a retention title clause and that Sakata maintains the right to claim them in whosoever’s possession they may be.

 

If any payment problem arises, the purchaser loses the right to resell the seeds delivered.

 

The purchaser shall handle the seeds delivered so as to enable them to be identified at all times as the property of Sakata and, following delivery, at its own expense, insure them against all risks and infringements against intellectual property rights related to the seeds delivered.

 

Trade names and/or numbers are the property of Sakata at all times and can be used by the purchaser only in connection with seed supplied by Sakata under these trade names and/or numbers.

 

The application of the retention of title clause makes no difference to the transfer of risks, these remaining the responsibility of the purchaser from the moment the seeds are delivered.

 

Product Information: All information given in Sakata catalogues or otherwise provided by Sakata, by any agent or representative on Sakata’s behalf, relating to seeds, varieties, varietal characteristics or periods of maturiry or otherwise relating to the performance of the seeds, is given for general guidance only. Purchasers or prospective purchasers are advised that any information so given does not constitute a representation by Sakata and should not be relied on as such, neither does it constitute any warranty on Sakata’s part.

 

Any recommendation given by Sakata or by its representatives relating to the use of the seeds in response to a specific enquiry by the purchaser or otherwise is given in good faith but should not be relied upon unless confirmed in writing by Sakata. It is the responsibility of the purchaser to satisfy itself of the suitability of the seeds for use in local conditions.

 

Quality Standards: All seeds are offered as having been tested to ensure they comply with the E.U. seeds regulations and the minimum legal standards in force at the time of delivery or deemed to be delivered (whichever is earlier).

 

Sakata gives all reasonable attention to the production, harvesting and shipping of seed which merits its own full confidence. However, Sakata gives no warranty as to the description, quality or productiveness or any other matter of the seeds delivered.

 

The seeds Sakata are supplying are bred from parent components, which have not been genetically modified. The methods used in the breeding, development and production of these varieties are aimed at producing pure seed of the highest quality, complying with all regulatory demands to avoid the adventitious presence of genetically modified organisms. Seed production is carried out in open fields in natural conditions in which there is free circulation of pollen. It cannot be excluded that in seed multiplication areas the authorised experimental growing of GM plants takes place. Although seed isolation distances minimise the risk it is not possible to prevent the adventitious presence of GMO and to guarantee that the seed lots comprising a delivery are completely free from any traces derived from GM plants. All seed, whether grown by us or purchased from outside our company, has been subjected to the appropriate sampling and testing to determine that the seed complies with the relevant seed legislation. Sakata gives no guarantee that the seed is GMO free and can accept no liability arising from the adventitious presence of traces of GMO in non-GM seed lots.

 

Seed treatment: Whether at the purchaser’s request any treatment, whether chemical or otherwise, is applied to the seed, Sakata’s liability shall be limited to such treatment being carried out in the correct manner and/or in accordance with instructions given by the manufacturer of the chemical in question. Sakata accepts no responsibility whatsoever for the effectiveness of such treatment or loss (including loss of profit, data, income, business, revenue or goodwill, costs, expenses or other claims), damage or injury of any kind which may result there from.

 

Conditions of use and storage: The seeds are to be used within a maximum time period of 1 year from the date of despatch from Sakata warehouse. Although Sakata takes great care to pack seeds in appropriate packaging, seeds are a living product and the germination and subsequent performance can be adversly affected by storage under incorrect conditions. After delivery and prior to sowing it is the customers responsibility to store the seeds in a dry, cool (but not freezing) location where the seeds will be free from attack by pests or vermin. No claim or complaint shall be considered by Sakata if the seeds have been used after the time period indicated above or have not been stored in accordance with Sakata Terms.

 

Defects, Complaint terms: The purchaser shall be deemed to have examined the seeds on, or as soon as possible after delivery to determine:

  1. whether the correct seeds have been delivered
  2. whether the quantity of delivered seeds is in conformity to the contract
  3. whether the description of the delivered seeds is in conformity to the agreed quality standards or, if no quality standards were agreed upon, to usual standards.

 

The purchaser shall report in writing to Sakata any alleged defects within 5 working days from delivery. The report shall describe the alleged defect and shall make reference to lot number, delivery note and/or invoice number of Sakata.

 

The purchaser shall report latent defects in writing to Sakata within 5 working days from discovering them. The report shall describe the latent defect and shall make reference to lot number, delivery note and/or invoice number of Sakata.

 

No claim or complaint shall be considered by Sakata if the report is received after the expiry of the above indicated time periods or if the report does not mention the requested information.

 

Return of seeds: The purchaser shall not be entitled to return the seeds except in exceptional circumstances with the prior written consent of Sakata. However, under no circumstance will Sakata consider acceptance of returned seeds when the original packaging has been opened or tampered with, or if the conditions of storage have not been fulfilled as indicated by Sakata.

 

 

Limitations of liability: Any seed not complying with the sales confirmation or any seed proved defective, whether as to purity, germination or otherwise or any seed proved having a latent defect will at Sakata’s option either be replaced by seed free of charge or credited at Sakata’s discretion. The liability of Sakata is exclusively limited to the purchase price of the seed. Sakata hereby expressly excludes all liabilities for loss or damage which might arise in connection with seed supplied except for damage resulting from any willful misconduct or gross negligence of Sakata or its executive management. Any condition, statement or warranty, statutory or otherwise, not expressly stated in these Terms are excluded. Sakata accepts no liability whatsoever for any seed that has been repacked, nor for any non fulfillment, late delivery, tort or other act of negligence by Sakata, other than expressly stated in this article.

 

Sakata is not liable for inappropriate use, storage, processing, treatment or repacking of the seeds or any acts or omissions of the purchaser or third parties that affect the seeds or their performance.

 

The purchaser shall transfer the aforementioned limitations of liability to his own customers. If not, then the purchaser shall defend and hold harmless Sakata from any claims, damages, loss or expense including, but not limited to, reasonable attorneys’ fees and any consequential damages arising in connection with the use, or resale, of the seeds to its own customers.

 

Force Majeure: Sakata shall not be responsible for delay in delivery of the seeds or any part thereof occasioned by any Act of God, action by any Government, strike, lockout, combination of workmen, riot or civil commotion, breakdown of machinery, power failure, fire, failure of crop, fuel shortage, loss and/or detention at sea, or any other contingency beyond his control. Should any of the seeds be rendered unfit for delivery by reason of any of the above acts, the Contract so far as it relates to those seeds shall be deemed to be discharged.

 

Insolvency:

1)If the purchaser to the contract:
a) Has a Receiver or Liquidator appointed of any of this property or business undertaking:
b) Announces that he is ceasing to trade (other than for declared legitimate reasons such as retirement, whilst continuing to honour all existing contracts);
c) Fails to make a payment as due, suspends payment and/or notifies any of his creditors that he is unable to meet debts or that he is about to suspend payment of his debts;
d) Convenes, calls or holds a meeting of creditors or;
e) Being an individual trader commits an act of bankruptcy and/or is adjudicated bankrupt or makes any composition or scheme of arrangement with his creditors; or
f) Being a body corporate convenes, calls or holds a meeting for the purpose of going into liquidation (other than for the purpose of reconstruction or amalgamation) by the making of an Order or the passing of a resolution for winding-up; or

g) Being a partnership if any of the above events occurs with respect to the partnership or to any partner therein then: - notwithstanding any previous arrangement with the other party for deferred payments, the full or full remaining price for any goods delivered by Sakata shall become immediately due to him; and Sakata shall have the right without prejudice to any other rights and remedies available to him, to cancel and/or suspend or to refuse to accept any further deliveries and/or to terminate the contract at any time after becoming aware of any of the above circumstance providing that; when exercising any of the above rights, the innocent party informs the purchaser of his intention to exercise such right or rights in writing within 28 days after the relevant occurrence.
2) Whenever any of these rights are exercised by Sakata, Sakata will not be liable to pay any compensation to the purchaser.

 

Applicable law and jurisdiction : The valdity, interpretation and performance of the present Terms as well as the sales contracts which would not be specifically governed by these Terms shall be governed by the laws of France (with express exclusion of the conflict of laws rules).  All disputes shall be referred to the French jurisdiction.