MENACO B.V. GENERAL TERMS AND CONDITIONS OF SALE AND DELIVERY
Clause 1 – Applicability
1.1 These general terms and conditions of sale (“General Terms and Conditions”) apply to every offer, quotation and agreement of purchase and sale in respect of which MENACO B.V. (hereinafter referred to as “MENACO”) acts as the Seller.
1.2 The applicability of any procurement conditions of the other party (hereinafter referred to as the “Other Party” or "Buyer") is explicitly excluded.
Clause 2 – Quotations, offers and formation of agreements
2.1 All quotations and offers of MENACO are without engagement and can be withdrawn anytime.
2.2 An agreement is considered to have been concluded by:
(i) written and full acceptance of the quotation or offer by the Other Party, unless MENACO revokes the quotation or offer within three days from receipt of such acceptance. If the Other Party accepts the quotation or offer with divergences of minor importance, such divergences shall not form part of the agreement and an agreement will be formed in accordance with the quotation or offer of MENACO; or
(ii) written and full acceptance by MENACO of an order given by the Other Party, unless this order has been revoked previously by the Other Party in writing, provided that such confirmation has been signed on behalf of MENACO by one or more persons authorized to conclude the agreement; or
(iii) delivery by MENACO of the goods ordered by the Other Party, where there is no explicit written confirmation of the order.
2.3 Specific agreements with a specific Buyer shall govern the relationship between MENACO and such Buyer only if legally executed by both parties signed.
2.4 If the Other Party accepts the quotation or offer subject to material divergences MENACO shall not be bound by it. In that case, the agreement shall not be, unless MENACO specifies otherwise.
2.5 When placing a purchase order, the Other Party shall report which information, specifications and documents are required under the rules and regulations of the country of delivery. The Other Party shall be responsible to inform MENACO of any formalities that must be complied with to enable import. The Other Party shall also provide MENACO with information on any required certificates, phytosanitary matters, import documents or invoices.
2.6 MENACO is not liable for delays or non-handling of a purchase order resulting from or in connection with the Other Party’s failure to comply with any of its obligations under Article 2. The Other Party shall be liable for any loss or damage incurred by MENACO resulting from or in connection with such failure.
Clause 3 – Prices
3.1 The prices stated in the quotation or offer of MENACO are exclusive VAT and other taxes, levies charges and costs incurred within the scope of the agreement, such as (but not limited to): handling fees, transport and insurance costs, (quality) certificate costs, value added tax, excise, use, or sale taxes and any other taxes, duties and charges, which shall be paid by Buyer at its applicable rate. If MENACO is required to pay any taxes or other compulsory payments on behalf of Buyer, Buyer shall reimburse MENACO for the full amount of such taxes and payments.
3.2 Unless specified otherwise, the prices stated in a quotation or offer are in the currency in which they are denominated.
3.3 MENACO reserves the right to alter prices periodically. Every new price renders the previous one inoperative in respect of orders placed after such new price.
3.4 A compound quotation does not oblige MENACO to carry out part of the order for a corresponding part of the price stated. Offers or quotations do not automatically apply to future orders.
3.5 MENACO must receive payment within 30 days of the invoice date, unless specified differently.
Clause 4 – Delivery and delivery period
4.1 Delivery is EX Works (according to the latest edition of Incoterms)- MENACO, unless the parties agree otherwise in writing. If the Other Party refuses or fails to accept delivery of the products/the seeds within a reasonable period after receiving notice from MENACO that they are ready for delivery. MENACO shall be entitled to store the goods at the expense and risk of the Other Party.
4.2. The delivery date is as specified in the purchase order or agreement between the parties. The agreed delivery date and any possible delivery periods are not strict binding deadlines. They are merely an indication and should not be regarded as guaranteed. since the seed production process involves substantial inherent uncertainties as to quantity and quality of final product, orders that have been accepted and/or confirmed by MENACO shall nevertheless always be deemed subject to availability on the intended delivery date – no liability shall be attributed to MENACO by virtue of orders that were not met, MENACO will inform the Other Party as soon as possible if it is unable to deliver the products or to deliver them in time.
4.3 If MENACO is not able to deliver for whatever reason, MENACO shall be entitled, where possible, to supply in proportion to the quantity ordered or similar alternatives or – if the Other Party does not agree with the foregoing – to cancel the order. The Other Party shall not be entitled to compensation in any of these cases.
4.4 MENACO is free to select the method of dispatching and packaging the goods to be delivered, unless agreed otherwise in writing with the Other Party.
4.5 MENACO is entitled to execute the agreement in several phases and to invoice the part thus executed separately.
Clause 5 – Packaging
5.1 Seeds are packaged and delivered in original MENACO packaging.
5.2 If seeds are delivered for resale, they shall exclusively be offered for resale in this original packaging. It is not permitted to repackage the seeds for resale or otherwise change the original packaging.
5.3 The alteration, processing or repackaging of products is strictly prohibited.
Clause 6 – Force Majeure
6.1 MENACO shall not be liable to fulfil any obligation in respect of the Other Party if MENACO is obstructed therein as a consequence of any circumstance for which MENACO cannot be blamed nor held accountable for by law, a juristic act or generally accepted standards.
6.2 Apart from the relevant legal provisions and case law, force majeure in these General Terms and Conditions shall be taken to mean all external causes, whether anticipated or not, on which MENACO cannot exert influence, but due to which MENACO cannot fulfil its obligations; strikes in the company of MENACO or by third parties, late or non-fulfilment of their obligations by suppliers or (sub)contractors engaged, loss of harvest and diseases or plagues included. MENACO shall also be entitled to invoke force majeure if the circumstance which impedes (further) fulfilment of the agreement occurs after MENACO should have fulfilled its commitment.
6.3 During the period in which the force majeure continues, MENACO may suspend the obligations from the agreement. If this period lasts longer than two months, each of the parties shall be entitled to dissolve the agreement without any obligation to compensate any damage or benefit derived in respect of the other.
Clause 7 – Retention of Title
7.1 Risk of loss to the products shall transfer to Buyer upon delivery in accordance with the agreed delivery terms. Unless otherwise expressly agreed, shipment shall always be carried out at Buyer's risk and expense.
7.2 Buyer agrees and acknowledges that subject to the right of use or resell under these General Terms and Conditions, the exclusive right, title to and interest in all intellectual property rights in or to the products/seeds, plant material or any mutations, varieties, essentially derived varieties or biological or other material obtained therefrom or included therein, including but not limited to genetics, traits, technology and/or all its characteristics, shall at all times be and remain the exclusive property of Menaco or the producer of the products (as the case may be).
7.3 Buyer may not use trademarks, trade names of MENACO and of the products, for any purpose unless otherwise approved in writing and in advance by MENACO.
7.4 The Other Party shall always do all that which may reasonably be expected of it in order to safeguard MENACO rights in and/or to the products as stated above. The seeds delivered by MENACO, which are subject to retention of title pursuant to paragraph 1, will at all times be stored and/or used in such a way that the quality will not be affected and that they can easily be identified.
7.5 If third parties attach any goods delivered under the retention of title or wish to create rights to them or lay claim to rights to them, the Other Party shall be obliged to inform MENACO thereof immediately.
Clause 8 – Payment
8.1 MENACO is entitled to invoice periodically.
8.2 Payment shall take place in euros, unless specified otherwise in writing by MENACO, and must be received within 30 days of the invoice date in the bank account indicated by MENACO, unless specified differently. After expiry of that period of time, the Other Party shall be in default, without a notice of default being required. In that case, the Other Party shall owe a 1% interest per month, unless statutory interest is higher, in which case statutory interest is due. The interest on the amount due and payable will be charged from the moment the Other Party is in default until the moment of payment of the total amount due. Apart from the right to claim fulfilment and/or compensation, MENACO shall also be entitled to cancel the agreement. Without prejudice to the above, MENACO shall be entitled to suspend the execution of all agreements with the Other Party if and as long as that party is in default with regard to its payment obligations.
8.3. If payment in instalments has been agreed, the entire remaining amount shall be immediately due and payable without notice of default in case of late payment of any instalment.
8.4 MENACO is entitled to claim an advance of 50% of the invoice amount from the Other Party on or after conclusion of the agreement, prior to any (further) performance, or to obtain security from the Other Party with regard to its payment obligations. If the Other Party fails to pay the advance or provide security within the period of time set by MENACO, the latter shall be entitled to dissolve the agreement without judicial intervention.
8.5 The Other Party is never entitled to deduct any discount or settlement of what it owes to MENACO.
8.6 Any objection against the amount of the invoice shall not suspend the payment obligation.
8.7 If the Other Party is in default or fails to fulfil its obligations all reasonable costs incurred to obtain an out-of-court settlement shall be at the expense of the Other Party. Any possible judicial and execution costs incurred shall also be recovered from the Other Party. The Other Party shall also owe interest on the collection charges due as stipulated above.
Clause 9 – Suspension of fulfilment of obligations and cancellation of the agreement
9.1 If Buyer fails to timely or fully comply with one or more of its obligations hereunder then, without derogating from any other right or remedy available to MENACO under these General Terms and Conditions or by law :
(i) MENACO shall be authorized to suspend any further performance of orders or any other agreement with Buyer or to terminate same by written notice to Buyer with immediate effect;
(ii) MENACO may demand full payment of all outstanding amounts upfront and/or obtaining sufficient security from Buyer, for instance in the form of a bank guarantee or LC to be issued by a reputable banking institution, with regard to the performance by Buyer.
9.2.in addition to the foregoing, MENACO is entitled to demand full payment of all outstanding amounts upfront and/or obtaining sufficient security for payment by Buyer before performing MENACO's obligations, if it has reasonable reason to believe that Buyer will not (or cannot) fully and timely fulfil its obligations under any or all orders or agreements.
9.3. If Buyer (a) is liquidated or commences any voluntary action, or if a petition is filed by any person in court, with respect to a liquidation, administration, winding up, entry into receivership, reorganization, dissolution or any other insolvency proceedings of Buyer, or a liquidator, trustee in bankruptcy, judicial custodian, compulsory manager, permanent or interim receiver or administrator are appointed in respect of Buyer, over all or any part of its assets, and such action is not cancelled or revoked within 30 days after being commenced, made or passed, or (b) ceases to carry on its business for a period of 14 days, or (c) is granted a suspension of payment, or (d) makes a general assignment of its assets for the benefit of its creditors, all its payment obligations shall be immediately due and MENACO shall be authorized to suspend any further performance of the agreement or to terminate it, without prejudice to its right to claim compensation from Buyer of all its damages and costs resulting therefrom or any other remedy available under law.
Clause 10 – Liability
10.1 MENACO shall in no event be liable to the Other Party for any special, punitive, incidental or consequential damage, including but not limited to loss of profits, yield, goodwill, revenue, production, contracts or opportunity. In any event and to the greatest extent permitted by law, MENACO’s liability, which also includes any damage and costs caused by faulty goods delivered, shall explicitly be limited to either replacement of the delivered seeds for no further fee or an amount equal to the price of the delivered seeds/products.
10.2 Any claim for liability or compensation must be made immediately when Buyer is aware of the claim or informed about the claim.
10.3 Any claim for liability or compensation must be made within 12 months of the delivery of the respective seeds/products to Buyer, following which Buyer’s right to assert such claims and MENACO’s liability with respect to the seeds/products shall expire
10.4 Buyer will indemnify MENACO against all actions and claims for damages (allegedly) caused by or otherwise related to any product delivered by MENACO, including actions and claims filed against MENACO in its capacity as a producer of goods pursuant to any regulation regarding product liability in whatever country, unless that damage is due to MENACO's willful misconduct.
Clause 11 – Use and guarantees
11.1 MENACO grants Buyer a personal, non-exclusive, non-transferable and limited license, without a right of sublicense, for the duration of the agreement to use the seeds/products for the sole purpose of producing a single crop. Buyer is not entitled to use the seeds and/or derived components and/or plant material (products) for further multiplication and/or reproduction purposes,
11.2 Buyer shall fully cooperate with any inspection by MENACO and shall allow MENACO (and/or third parties acting on its behalf) with direct access to its business, including in particular the greenhouses and administrative and farming facilities, to enable MENACO to carry out (or have carried out) inspections to verify compliance with the aforesaid requirements and in general for the purpose of verifying any possible infringement of MENACO’s rights or violation of these General Terms and Conditions or any other agreement between the Parties. Buyer shall also impose the aforesaid obligations on its own buyers.
11.3 Information provided by or on behalf of MENACO is based on average tests results. Such information merely indicates the result as achieved by MENACO at the time when the test was performed, subject to the conditions under which such test was performed and shall not constitute an express or implied warranty. The results achieved by Buyer depend on many factors, including withouyt limitation on the location, climatic conditions and growing conditions. MENACO disclaims any and all liability on the basis of such information for different results obtained.
Clause 12 – Defects and complaint periods
12.1 Use by the Other Party of any of the goods shall constitute acceptance. Minor divergences, among others in quality, composition and characteristics, which are unavoidable from a technical point of view or which are generally accepted, can never constitute grounds for complaint.
12.3 Any visible faults shall be reported to MENACO in writing within 24 hours from delivery, stating the details regarding lot number, packing list and/or invoice details as well as any supporting evidence (photo’s, experts statements etc.). Any complaints must be accompanied by the allegedly defective seeds/products and their packaging.
12.4 Any non-visible faults shall be reported to MENACO in writing forthwith, but in any event no later than within 24 hours, after their discovery, and the above instructions in clause 12 shall apply. .
12.5 Complaints shall be described in such a manner that MENACO or a third party can verify them. The report shall contain a description as detailed as possible of the alleged fault and the place of storage or cultivation, so that MENACO will be able to respond adequately. The Other Party shall give MENACO the opportunity to investigate a complaint (or have it investigated) and is obliged to cooperate in such investigation. For that purpose Buyer must also keep records with regard to the use of the seeds and, in the event of resale of the seeds, with regard to its buyers. If Buyer does not file a complaint within the aforesaid period, or according to the above instructions, the complaint will not be dealt with and any rights Buyer may have had will expire.
12.6 Subject to the other stipulations of this clause, delivered seeds/products cannot be returned or changed by the Other Party after opening the packaging.
12.7 The payment obligation will not be suspended in the case where the Other Party files a complaint in time. In that case, the Other Party shall also remain accept and pay for the goods ordered.
Clause 13 – Protection
13.1 Buyer acknowledges that the results obtained by Buyer depend on numerous factors and variables, such as the place of cultivation and the conditions prior to and during cultivation, including but not limited to storage of seeds, the climate, the soil, crop management and crop protection methods, and are not guaranteed or assured in any way. Buyer shall be solely responsible for determining the suitability and appropriateness of the use of the seeds/products in the different conditions and/or for the different purposes and Menaco disclaims any and all liability with respect to any merchantability or fitness of the seeds/products for a particular use.
13.2. Without derogating from the generality of the foregoing, seed storage is essential for preserving high seed quality, vigor, and viability for future use.
13.3 Buyer acknowledges that seeds delivered by Menaco are not fit for human or animal consumption.
Clause 14 – Applicable law and choice of forum
14.1 Dutch law applies exclusively to all agreements to which these General Terms and Conditions apply and the execution thereof, as well as to all engagements to which these Terms and Conditions apply.
14.2 All disputes related to, arising from and/or regarding the interpretation and/or execution of the agreement will be submitted to the District Court of Zeeland-West Brabant, such after the parties have first held consultations.
14.3 Applicability of the “United Nations Convention on contracts for the International Sale of Goods” (the Vienna Sales Convention) is hereby explicitly excluded.
Clause 15 – Final Provisions
15.1 If any provision of these General Terms and Conditions is invalidated, that provision will automatically (by operation of law) be replaced by a valid provision that corresponds as closely as possible to the purport of the invalidated provision. The parties must, if necessary, enter into reasonable consultations on the text of that new provision.
15.2 In that case the other provisions of these General Terms and Conditions will remain fully valid as far as possible.
15.3 MENACO is entitled to amend these General Terms and Conditions. Such amendments will take effect at the announced time of entry into force. MENACO may revise these General Terms and Conditions without notice and, for this reason, Buyer is requested to access and read this page every time it visits MENACO’s website.
15.4 Buyer shall make sure its customers are clearly notified of the applicable Terms and Conditions hereunder. Buyer waives any right of indemnification if its customer has not been so notified, and further agrees that if such notice is not given and legal action is brought, Buyer will hold harmless, defend and indemnify MENACO and any party related or affiliated thereto against all losses, costs and expenses (including without limitation legal costs and attorney’s fees).
15.5 These general terms and conditions apply as from 01-08 2018 and shall from that moment replace all previous general terms and conditions of sale and delivery applied by MENACO.