General Terms and Conditions of Takii Europe B.V.
Article 1. Applicability of these General Terms and Conditions and definitions:
- These General Terms and Conditions are applicable to all quotations and all contracts between Takii Europe BV (hereinafter referred to as “Takii”) acting as the seller, and a buyer, to the extent that one or more of these conditions are not expressly altered in writing.
- The applicability of the general conditions of the buyer or any other general terms and conditions used or referred to by buyer is expressly rejected and excluded.
- Should a stipulation included in these General Terms and Conditions not be applicable if and in so far as mandatory rules and regulations oppose such applicability, then all other stipulations shall remain in full force.
- The buyer shall inform about his customers the content of these General Terms and Conditions and make them also applicable in the agreements he is concluding with his customers regarding the products.
- The term ”products” as used herein shall mean seeds, plants, parts of plants and any other form of genetic material of flower and vegetable seed varieties.
Article 2. Offers and conclusion of agreements
- All offers made by Takii are without engagement and can be withdrawn at any time.
- Offers can only be accepted by the buyer in writing. Takii nevertheless reserves the right to treat a verbal acceptance as if it were given in writing.
- If the Buyer accepts an offer, Takii nevertheless reserves the right to withdraw the offer within 3 working days of acceptance (either verbally or in writing), in which case no agreement is concluded between the parties.
- Verbal offers automatically expire if the Buyer does not accept them in writing within 7 days and written offers automatically expire if not accepted by the Buyer in writing within 30 days.
- Takii reserves the right to refuse orders with an order value per item less than € 25 or with a total order value of €400 or less (exclusive VAT). However if Takii accepts such an order it is entitled to charge an administrative fee of €25.
- An agreement is concluded by:
a. Written and total acceptance by the buyer of Takii’s offer, provided that Takii does not exercise the right stipulated in article 2.3 of these General Terms and Conditions. In so far as the buyer accepts Takii’s offer with deviations of minor significance, these deviations shall be not part of the agreement and an agreement is concluded in accordance with Takii’s offer. In so far as the buyer accepts Takii’s offer with deviations that are not of minor significance then such deviations shall only be part of the agreement in the event that and in so far as Takii has accepted these deviations in writing.
b. Written acknowledgement and total acceptance by Takii of an order submitted by the buyer, unless this order has previously been revoked by the buyer in writing, on condition that this confirmation is signed in Takii’s name by one or more persons authorised to conclude the agreement.
c. Delivery of the products by Takii and only for those products supplied in accordance with the packing list, when no explicit order confirmation has been given in writing.
Article 3. Prices
- The prices specified in an offer are exclusive of VAT, other taxes and levies and are Ex Works (EXW) (most recent version of the Incoterms) De Kwakel. All prices stated in price lists or offers are in EURO (€), unless it is explicitly stated otherwise in the offer.
- Takii reserves the right to change its prices. All new price listings supersede the previous prices with regard to orders placed following the new price listing.
Article 4. Harvest and processing proviso
- Deliveries shall be made under the usual harvest and processing proviso. In the event of Takii invoking the harvest or processing proviso, Takii shall not be obliged to deliver but shall if possible endeavour to deliver products on a pro rata basis according to the ordered quantity or comparable alternatives.
- The buyer shall not be entitled to any compensation for damages in the event of Takii invoking this proviso.
Article 5. Delivery
- In the event that the ordered quantity deviates from the standard quantity applied by Takii or a multiple thereof, Takii shall be free to deliver the next highest quantity.
- Takii shall act to the best of its ability in meeting its delivery obligation.
- Takii’s correct compliance with its delivery obligation include also deliveries with a minor deviation in terms of size, packaging, number or weight.
- Takii shall be permitted to deliver the products in partial batches. In the event of the products being delivered in partial batches, Takii shall be entitled to invoice each batch separately.
- Takii undertakes to deliver within a reasonable period of time after order confirmation in accordance with the sowing season or the planting season.
- An agreed delivery time shall not be regarded as a firm/fixed date and shall not be deemed to be a term to be observed on penalty of forfeiture of rights. In the event of late delivery, the buyer shall be required to give Takii written notice of default and a reasonable period of time in which to meet the provisions of the contract.
- Upon placing an order, the buyer shall indicate in writing the dates, specifications and documents that are necessary to meet the regulations of the country of destination upon delivery, such as, but not limited to, those in relation to:
• Phytosanitary certificates
• International certificates
• Other import documents
Takii cannot be held liable for any losses suffered if the buyer does not make these details correctly available, thus causing the order to be delayed or impossible to implement.
- Delivery shall take place Ex Works (EXW) De Kwakel in accordance with the Incoterms applicable at the moment of the conclusion of the agreement. Takii will have met its delivery obligation at the moment at which the products are issued to the shipping company. The risk of loss of and damage in or to the products (whether or not as a result of loading or transport) shall pass to the buyer immediately upon the issuance of the products to the shipping company and shall consequently be the sole liability of the buyer. From that moment Takii can no longer be held liable for late delivery, non-delivery, other hindrances or damage caused during shipment.
- The costs of shipment and insurance of the shipment are for the account of the buyer. Notwithstanding the foregoing, Takii shall be free in the choice of shipment and packaging of the products, unless differently agreed upon with the buyer in writing. Additional costs resulting from special requirements of the buyer relating to the shipment and packaging shall be charged to the buyer.
- The costs of certificates and other documents that Takii is required to provide shall be charged to the buyer unless otherwise agreed.
- In view of the high quality standards, delivered products can only be returned with the prior written permission of Takii and provided that the products are returned in the undamaged original packaging within 15 working days of the invoice date. Takii will not accept return deliveries that are made after 60 days of the invoice date. Crediting shall take place at 75% of the invoice amount, not including VAT. Returned primed seed and seed contaminated with insecticides will not be accepted or credited. Transport costs that are incurred for returns shall be for the buyer’s account.
- All deliveries shall be made or take place from Takii’s stocks. In the event of products not being in stock and must be delivered urgently on the buyer’s request by Takii & Company Ltd. in Japan, the additional delivery costs incurred will be charged to the buyer.
- Orders that have been confirmed by Takii can only be fully or partially cancelled by the buyer following (written) agreement between Takii and the buyer.
- All seed treatments that are carried out on the buyer’s request shall be charged to the buyer unless otherwise agreed.
- No packaging materials, including containers, can be returned to Takii.
Article 6. Suspension
- In the event of the buyer failing to comply with one or more of his obligations correctly or on time:
• The obligations of Takii shall be automatically and immediately suspended until the buyer has fully met all of his obligations, financial or otherwise (including payment of any extra judicial costs).
• Takii can require the buyer to remit full payment and/or furnish sufficient security, e.g. in the form of a bank guarantee issued by a reputable Dutch bank institute in respect of the buyer’s compliance.
- Takii shall at all times be entitled to require the buyer to remit full payment and/or furnish adequate security before meeting his obligations if it is likely that the buyer will not (be able to) meet his obligations correctly and/or on time.
Article 7. Intellectual Property and promotion material
- All Intellectual Property related to the products, including amongst others, plant variety rights, patent rights, as well as the variety names for the products, copyrights and trademarks used by Takii for the promotion of its products and photographic material, are and shall remain the sole and exclusive property of Takii. The buyer shall not acquire nor claim any right, title or interest in or to the Intellectual Property of Takii, and nothing shall be construed as constituting such right, title or interest. Without the prior written approval of Takii the buyer shall not make use of any of Intellectual Property of Takii, with exception of the following. The buyer shall only (i) trade/resell the products under their original variety name and (ii) trade/resell the products in the original Takii packaging. In both cases the buyer will comply with the instructions and manner specified by Takii thereto.
- The buyer shall not remove, cover or change any trademark, lettering, numbering, coding, or any other designation applied or attached by Takii to the package of the products, nor shall he change the variety name or trademark of the product.
- Photographic and other material supplied by Takii may be used only as support and illustration material for the Takii products upon prior written approval by Takii.
Article 8. Circumstances beyond Takii’s control (force majeure)
- If Takii cannot meet one or more of its obligations due to circumstances reasonably beyond its control, the buyer and Takii are entitled to dissolve the agreement in its entirety or partially by means of a written notification sent to the other party to this extent.
- The buyer and Takii are in any case entitled to dissolve the agreement if Takii, as a consequence of circumstances reasonably beyond its control, cannot carry out its part of the agreement within 30 days after such circumstances arose.
- Neither in the case of article 8.1 nor in case of article 8.2, is Takii obligated to compensate buyer or any other party for any damage and/or costs incurred or compensation of possible benefit derived.
- Circumstances beyond Takii’s control are events which cannot be attributed to Takii such as, but no limited to, reasonably war, threat of war, terrorist attacks, rebellion, fire, catastrophes, strikes, blockades, exclusion, traffic disorder, factory disorder, impeding government measures, disorder in the supply of energy, raw materials or semi-finished products, personnel illness, non-compliance or late compliance with their obligations on the part of its suppliers or (sub)contractors called in.
- In the event that Takii has already partially complied with its obligations at the time when circumstances beyond its control arise or have only been able to comply partially with them, then Takii shall be entitled to invoice separately the batch already delivered or the batch deliverable and the buyer shall be obliged to settle this invoice as if this were a separate agreement.
Article 9. Retention of title
- The products delivered by Takii shall remain the property/ownership of Takii until the buyer has remitted the purchase amount and/or any other amounts due in full. The retention of title/ownership shall also be applicable to claims that Takii may have against the buyer in respect of non-compliance of the buyer with one of his obligations to Takii.
- The products delivered that resort under the retention of title as provided for in this article, may only be sold on or used within the scope of normal business practice. Should this be the case, then the buyer shall be obligated to have Takii subrogated to his rights vis-à-vis his purchaser(s) until the purchase has completely paid for the products and has observed his other obligations on the basis of this agreement or of similar agreements concluded with Takii. The rights mentioned herein before shall expressly include any and all claims and any possible (future) claims on account of damage to or loss of products delivered. The buyer shall transfer such rights to Takii, a transfer that Takii hereby accepts, now for then, already, and in so far as this is necessary.
- The buyer is not permitted to establish a pledge on the products or encumber them with any other rights.
Article 10. Payment
- Takii must receive payment within 30 days of the invoice date unless otherwise agreed in writing. Once that period has elapsed, the buyer shall be in default without any notice of default being required. From that moment onwards the buyer shall be obliged to pay interest of 1% over the payable amount per month.
- In the event the buyer has adopted a resolution in order to dissolve buyer/the company, or has been declared bankrupt or has been granted suspension of payment or in case a silent trustee (i.e. not publicly disclosed trustee) has been designated/appointed after the buyer has filed a so called “pre-pack petition/request” with the court, all payment obligations of the buyer shall become immediately due and payable and Takii shall be authorised to suspend the further implementation of the contract or to dissolve the contract, without prejudice to Takii’s right to claim compensation for damages.
- In the event of payment in instalments having been agreed, late payment of an instalment will result in the entire remaining amount becoming immediately due and payable without notice of default being required. The provisions of the last sentence of article 10.1, are applicable mutates mutandis.
- Takii shall at all times be entitled to require security for the buyer’s compliance with his payment obligation and/or to consign products exclusively on a cash on delivery basis and to suspend compliance with the contract until the aforementioned security has been furnished to the satisfaction of Takii.
- Payment must be made without deducting any discount and whereby setting off debts is not permitted.
- Any complaints about an invoice must be made in writing to Takii within 14 days after the invoice date. No complaints whatsoever or any other dispute between the buyer and Takii shall entitle the buyer to suspend payment of the invoices and/or otherwise invoke a right or suspension and/or retention against Takii.
- Article 10.2 shall also be applicable in the event of the situation set forth in that article arising at any parent, daughter and/or sister company belonging to the buyer’s group and/or any company otherwise affiliated with that of the buyer, irrespective of its legal form. In those cases, Takii shall be authorised to set off its claims and debts within the group context of the buyer.
Article 11. Debt collection costs
In the event of the buyer being held in default or failing to comply with one or more of his obligations, all extra judicial (but with a minimum of 15% of the amount due) and judicial debt collection costs shall be charged to the buyer.
Article 12. Dissolution
- If Takii uses its right to dissolve the agreement either partially or entirely, then a written notification to that effect shall be sent to the buyer as a result of which dissolution shall take place.
- In the event that Takii dissolves the agreement, the buyer shall be obliged to compensate the damage and costs incurred by Takii, unless dissolution has occurred on the basis of the stipulations included in article 8. The Buyer shall not be entitled to any compensation of damage and costs towards Takii.
- If the agreement is dissolved, products already delivered must be returned to Takii free of charge. In addition, Takii is entitled to require immediate release of the products to Takii from the party in whose possession they may be. The products remain at the risk of the buyer until Takii has received and approved them.
- In the event that Takii dissolves the agreement or if Takii suspends the execution of the agreement, Takii shall remain entitled to receiving payment of the invoices of deliveries carried out by Takii until the dissolution.
- Rights and obligations of the parties included in article 16 (liability), article 19 (disputes), article 20 (applicable law) shall remain applicable even after the dissolution of an agreement.
Article 13. Usage and guarantee
- Takii guarantees that the delivered products will meet the relevant product specifications to as great an extent as possible. The product specifications cannot however be regarded as a guarantee. In the event of the delivered products not meeting the product specifications, the buyer will be informed as such. Neither does Takii guarantee that the delivered products meet the purpose envisaged for them by the buyer.
- All quality information provided by Takii is based exclusively on tests that can be replicated. No direct relationship can be assumed between the information provided and the result received by the buyer. The information provided merely gives the result at the time at which the test was carried out and the conditions under which the test was carried out. The result depends, among other things, on the location, cultivation measures or the weather conditions at the company of the buyer.
- All guarantees given by Takii shall be null and void if the buyer treats the products or has them retreated, repackages them or has the repackaged, or uses them incorrectly.
- Takii will rely on the information given to Takii by a third party on products, which Takii has purchased from this third party. Takii can never be held liable for products, which have been supplied to Takii by third parties. If the products delivered do not comply with the product specifications, the buyer will be informed. Takii furthermore does not guarantee that performances rendered by the product will comply with the purpose it is used by the buyer.
Article 14. Defects; complaint periods
- The buyer must inspect the purchased products immediately upon delivery. The buyer must establish whether the delivered products meet the specifications, i.e.:
• whether the correct products have been delivered
• whether the quantity of the delivered products is in keeping with the agreement
• whether the delivered products meet the agreed quality requirements or – in the absence of such agreements – the requirements that can be set for normal usage and/or trading purposes.
- In the event of visible defects or deficiencies being established, the buyer shall report them in writing to Takii within 5 working days of delivery, stating the batch, consignment slip and/or invoice details.
- The buyer must report non-visible defects in writing to Takii within 5 working days after the buyer should have reasonably discovered them, but in any case within two months after delivery, stating the batch, consignment slip and/or invoice details.
- The buyer shall inform Takii of complaints regarding defects and deficiencies within the set period of time by registered mail.
- Complaints must be described in such a way that Takii or a third party can verify them. For this purpose, the buyer must also keep records of the use of the products and, in the event of the products being sold on, of his buyers. If the buyer has not reported defects within the aforementioned periods, his complaint will not be accepted and his rights will be null and void.
- If a complaint is justified then Takii shall only be obliged to deliver the products that are short, to replace the delivered products or to take back the products and to credit the buyer for the invoice amount concerned. It shall be entirely at Takii’s discretion which of these options Takii shall exercise. In no event shall Takii be obliged to fulfil any other obligation or can Takii be held liable for compensation of costs and/or damage.
- In the event of a lasting dispute arising between the parties concerning the germination, trueness to type, the varietal purity, the technical purity and the health of the products, an analysis can be carried out on the request of one of the parties by the NAKTuinbouw (ISTA Station), established in Roelofarendsveen, the Netherlands, at the expense of the party against whom the ruling is made. The analysis will be carried out on the basis of the reference sample taken before sale and managed by Takii. The result of the analysis shall be binding to both parties, notwithstanding the right of the parties to refer disputes on the implications of that result to the bodies provided for in article 19.
Article 15. Provision of information
- All information provided by Takii in any form whatsoever does not lead to any obligation. Descriptions, prognoses, recommendations and illustrations in brochures and leaflets are geared as accurately as possible to experiences in trials and in practice. Takii does not however accept any liability whatsoever on the grounds of such information for deviating results in the cultivated product on the basis of such information. The buyer must himself judge whether the products are suitable for the envisaged crops and/or for use under the local conditions.
- In the information supplied by Takii, “immunity, resistance and susceptibility” shall mean the following”
• “Immunity”: not subject to attack by a specified pest or pathogen.
• “Resistance”: 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. Resistant varieties may exhibit some disease symptoms or damage under heavy pest or pathogen pressure. Two levels of resistance are defined:
– High 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.
– 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 of pathogen pressure.
• “Susceptibility”: the inability of a plant variety to restrict the growth and development of a specified pest or pathogen.
- All information that is provided about immunity, resistance and susceptibility is based on results that were obtained from analyses performed by the refinement stations of Takii & Company Ltd. in Japan. These analyses were performed with local knowledge of pathogens known at that time and do not guarantee the same results in other parts of the world. Takii cannot therefore be held liable for any form of loss caused by the information provided.
Article 16. Liability
- Takii’s liability resulting from any cause whatsoever, including the damage caused by defective products that have been delivered, shall be explicitly limited to the liability arising from this article 16. Under no circumstances shall Takii be liable for any further compensation of damages, costs and losses. Takii shall not be liable in any case for an amount higher than the invoice value of the defective products and neither will Takii be liable for compensation of any type of indirect or consequential damages, costs and losses.
- Takii cannot be held liable for damages, costs and losses caused as a result of a defect in the delivered products other than in the event of deliberate act or omission (wilful misconduct) and/or gross negligence on the part of Takii and/or its employees.
- Takii is never liable for damage, costs and losses which are a result of deviations in growth and flowering of the plants grown from the products delivered,
- The buyer is obliged to limit the loss in respect of the products about which he has lodged a complaint with Takii to as great an extent as possible.
- Takii does not accept any liability for damage caused by seeds and planting material that has not been multiplied and/or reproduced by or on behalf of Takii, or that has been repacked without the written approval of Takii.
- The buyer shall indemnify Takii against claims from third parties, including claims for compensation of damage, costs and losses that arise from or are in connection with the products supplied by Takii to the buyer.
Article 17. Use of the Products
- Without the prior written approval of Takii, products that are supplied by Takii may only be used or resold for the production of horticultural products for consumer purposes.
- The buyer is obliged to grant immediate access to his company, administrative records and the crops of the products delivered to him so that inspection bodies can perform relevant verification actions to check if the buyer is in compliance with the prohibition stipulated in paragraph 1 of this article. In the event the buyer finds a mutant in the products, he shall immediately inform Takii hereof with confirmation by mail and provide Takii with test material from the mutant. The buyer shall not exploit the mutant for whatever purpose soever without the written permission of Takii. The buyer is also in particular aware that he requires the written permission of Takii to perform the following acts in respect of the mutant: production or reproduction (multiplication); conditioning for multiplication; offering for sale, selling or otherwise trading, implementing; importing, storing for one of the purposes set forth above.
Article 18. Conversion
- Should a stipulation in these General Terms and Conditions become invalid, that stipulation shall be automatically (legally) replaced by a valid stipulation that is as much as possible in line with the tenor of the invalid stipulation. The parties are obliged to enter into reasonable consultation with each other concerning the text of that new stipulation if necessary.
- Notwithstanding the provision of the foregoing article 18.1, all other stipulations of these General Terms and Conditions shall remain unchanged and in full force.
Article 19. Disputes
- Unless the parties have agreed upon arbitration under mutual consultation, all disputes shall be settled in the first instance by the competent court in Amsterdam.
- In the event of a dispute arising the parties will however initially attempt to find a solution under mutual consultation or by other means of mediation before referring the dispute to an arbitration tribunal or the civil court.
Article 20. Applicable law
- Dutch law shall govern all contracts between Takii and the buyer.
- The applicability of the ‘United Nations Convention on the International Sales of Seeds’ (the Vienna Purchasing Treaty) is hereby explicitly excluded.