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HM.CLAUSE, S.A.S. a company with a capital of 10 061 492,50 , Rue Louis Saillant, Z.I. La Motte, 26800 PORTES-LES-VALENCE (France) SIREN 435 480 546 RCS ROMANS-SUR-ISERE Tél. 33 (0)4.75.57.57.57 Fax 33 (0)4.75.57.34.94 TVA N° FR 60435480546
I PROVISIONS APPLICABLE TO BUYERS/CUSTOMERS DELIVERED AND BUYERS/CUSTOMERS INVOICED
PREAMBLE IMPORTANT REMINDER:
These general terms and conditions of sale comply with the rules of the profession, national and international customary practices and in the absence of any special agreements duly approved, apply expressly to all sales of vegetable, flower, medicinal and aromatic seed, including seed delivered in bulk, and in particular to sales completed with all horticulturists, market gardeners, growers, vegetable growers, plant growers, nurserymen, processors, communities, groupings, retailers, baggers, importers, preservative suppliers, manufacturers and more generally to all experienced and knowledgeable professionals for the professional range called «PRO» or whose activity consist to sell to home gardeners (those using the seeds for a strictly private use, or familiar or leisure, excluding any professional use) for the «Clause Home Garden» range called «CHG» (hereinafter referred to as «purchaser(s)»).
The fact of placing an order therefore implies the purchaser s acceptance of the general terms and conditions of sale printed on HM.CLAUSE commercial documentation (hereinafter referred to as «seller»), where these exist, notwithstanding any provision to the contrary in the purchaser s general purchasing terms and conditions, purchase orders and other documents, including commercial documents.
The descriptions, illustrations, recom- mendations, suggestions, opportunities, cycles of vegetation or earliness which may be presented on any media (catalogues or other commercial documents) are intended for the experienced knowledgeable professional, are the results of our observations, and are put forward in good faith for indicative purposes exclusively, and consequently must not in any event be treated as exhaustive, or as guaranteeing cropping yield and/ or result, prejudging any specific factors or circumstances (present or future), and, more generally, amounting to any contractual commitment whatsoever, or in any way incurring the seller s liability.
ARTICLE 1 - WARRANTIES: 1.1. The seller warrants to the purchaser that he will supply him with goods of a fair, healthy and merchantable quality in accordance with the state of the art technical knowledge at the time of production and in compliance with the regulations and customary practices in the seed trade.
1.2. In view of the nature of the products sold (live products subject to a large number of external hazards when used), the results obtained do not depend solely on the variety and the quality of the seed. The purchaser alone shall be responsible for determining the conditions under which the seed is used, and specifically must satisfy himself of the suitability of his exploitation conditions and local geographical conditions, intended period of cultivation, soil and resources (such as technical knowledge and experience, cultivation techniques and operations), materials (such as tests and control methods) and equipment and, more generally, his agronomic, climatic, atmospheric, sanitary, environmental and economic context with the crops, techniques and variety presented.
That being so, the seller s liability shall be incurred, partially or wholly, only in the case of an acknowledged established defect or non-compliance for which a potential legal actions would not have lapsed and in no case, particularly insofar as concerns authenticity or varietal purity, specific purity, germinative capacity, compliance with resistance to strains or races of disease recognised to date, may exceed the total amount of the goods delivered, including the justified costs arising from returning the said goods.
Moreover, the seller shall not be held liable in case of problems identified in the use of untreated seeds, which by definition do not
have the same treatment and preservation process than the one applied to treated seeds regarding any issue relating to seed raising, diseases, parasites, etc. or any other alteration in the development of the variety. The purchaser acknowledges and accepts the risks in connection with the order of untreated seeds.
1.3. Unless there is a special agreement with the seller, the various varieties of seeds are delivered to the purchaser for the purposes of sale and/or resale exclusively under the seller s varietal name and trademark. Consequently, the purchaser expressly agrees not to remove any seed (which is sold to him in its original packaging) from its packaging and/or sachets for the purposes of repackaging and/or processing the seed in any way whatsoever (coating, film coating, treatment or other), and/ or reselling the same in open packaging. He undertakes to have his own customers abide by this clause. In the event that the purchaser or his own customers do not comply with this obligation, the seller shall not be held liable in any way whatsoever for the goods delivered by him, and the purchaser shall accept full liability for the consequences which may arise from failure to comply with this obligation.
The seller will also not be liable for any damage that might arise from its packing and packaging whatsoever.
1.4. An approximate number of seeds sold is given for each variety by the seller to the purchaser, for information purpose exclusively. Indeed, such number may vary due to seed lot, crop results or any other reason whatsoever.
1.5. The goods are unsuitable for human or animal consumption and are delivered by the seller for use by the purchaser or his own customers, in accordance with their intended purpose. Consequently, in no case may the seller be held liable for any use of the said goods that does not comply with their intended purpose or for any consequences of such noncompliant use. Similarly, any multiplication, production and/or reproduction and/or re- export of the goods by the purchaser or his own customers is formally prohibited.
At any time, the seller may check that the foregoing provisions are fully respected, without prejudice to any other action by the seller. The purchaser undertakes to ensure that his own customers comply with this clause.
1.6. Regardless of the reason, the seller will not accept any return of goods except with his prior written agreement, in which case, all related costs and risks shall be borne by the purchaser exclusively.
ARTICLE 2 - CASE OF FORCE MAJEURE: Orders shall not be carried out in a case force majeure.
As a non-limitative example, the following are considered as cases of force majeure, atmospheric, climatic, environmental disturbances, acts of war, riots, strikes, epidemic/pandemic/endemic, fires and accidents in any firms participating in the production (including cultivation accidents of any nature leading to alterations in the quantity and quality of the seed sold) and the distribution of the seed.
ARTICLE 3 - INTELLECTUAL PROPERTY: 3.1. These general terms and conditions of sale may not be interpreted as granting the purchaser any intellectual right/title over the seller s goods as well as over the packaging and/or media and/or related documents and/or intellectual rights/titles and/or distinctive signs, which are the property of the seller or which the seller operates or uses in the context of his activity.
3.2. The purchaser shall refrain from hiding, deleting or modifying, in any way whatsoever, intellectual rights/titles as well as distinctive signs that appear on the packaging of the goods delivered by the seller concerning the «PRO» range.
3.3. The purchaser undertakes to inform the seller immediately, and by any means, of any infringement of his property rights and/or intellectual property rights and/or titles and/ or distinctive signs (or the ones he operates or uses in the context of his activity and to co- operate fully with the seller.
3.4. At any time, the seller may check that the foregoing provisions are fully respected, without prejudice to any other action by the seller. The purchaser undertakes to ensure that his own customers comply with this clause. The purchaser expressly authorizes the visit of a person appointed or mandated by the seller to control the respect of the provisions of these terms and conditions of sales, especially the
provisions relating to intellectual property and the preservation of the quality of the goods. To do so, the purchaser agrees to facilitate free access to its premises including but not limited to its greenhouses. The seller can also consult all relevant documents in this regard. In case of resale of the goods to third parties, the purchaser shall inform such third parties of the obligations described here above.
3.5. IMPORTANT NOTICE All intellectual property rights reserved. Illegal reproduction and/or exploitation is forbidden. Violation of these rights may constitute a serious offence that is prosecutable by Law. For further information see: www.hmclause.com .
ARTICLE 4 - RISKS: 4.1. The goods travel at the purchaser s and/ or the seller s risk, depending the last version in force of the Incoterm agreed for the sale.
4.2. Similarly, unless there are special terms and conditions, any delay in delivery/loss/ damage caused to the goods during shipment and all consequences shall be borne exclusively by the purchaser.
The consignee is obliged to confirm his reasoned reserves to the haulier, by letter sent in recorded delivery with acknowledgment of receipt posted within three days of receipt of the goods (art. L133-3 of the French Commercial Code) or within any other time limit stipulated by the governing legislation. No action can be taken against the haulier if these formalities are not fulfilled.
ARTICLE 5 - TIME LIMITS FOR COMPLAINTS: Any complaint concerning the external appearance and specific purity should be made within twelve days following arrival of the goods, on the germinative capacity within forty-five days following arrival of the goods, on the authenticity and varietal purity within the normal time limits for sowing and inspection immediately following the delivery date. In all cases, no complaint will be accepted by the seller in the event the seed was repackaged by the purchaser or by his own customers.
ARTICLE 6 - RESISTANCE: Susceptibility is the inability of a plant variety to restrict the growth and/or development of a specified pest.
Resistance is the ability of a plant variety to restrict the growth and/or development of a specified pest and/or the damage it causes when compared to susceptible plant varieties under similar environmental conditions and pest pressure.
Resistant varieties may exhibit some disease symptoms or damage under heavy pest pressure.
Two levels of resistance are defined.
High resistance (HR): plant varieties that highly restrict the growth and/or development of the specified pest and/or the damage it causes under normal pest pressure when compared to susceptible varieties. These plant varieties may, however, exhibit some symptoms or damage under heavy pest pressure.
Intermediate resistance (IR): plant varieties that restrict the growth and/or development of the specified pest and/or the damage it causes but may exhibit a greater range of symptoms or damage compared to high resistant varieties. Intermediate resistant plant varieties will still show less severe symptoms or damage than susceptible plant varieties when grown under similar environmental conditions and/or pest pressure.
Varieties claiming the same level of resistance against a specific pest may exhibit a different resistance response due to a different genetic makeup of a variety.
It is to be noted that if a resistance is claimed in a plant variety it is limited to the specified biotypes, pathotypes, races or strains of the pest.
If no biotypes, pathotypes, races or strains are specified in the resistance claim for the variety, it is because no generally accepted classification of the cited pest by biotype, pathotype, race or strain exists. In this case resistance is only claimed against certain not further specified isolates of that pathogen. New biotypes, pathotypes, races or strains that may emerge are not covered by the original resistance claim.
Immunity is when a plant is not subject to attack or infection by a specified pest.
ARTICLE 7 - APPLICABLE LAW PLACE OF JURISDICTION: 7.1. These general terms and conditions of sale, including the operations of sales, are subject to
French law which alone is applicable.
7.2. For any dispute relating to the enforcement and the interpretation of the said general terms and conditions of sale, the Courts in Paris (France) shall have sole jurisdiction, even in the case of emergency interim proceedings, the introduction of a third party for guarantee or multiple defendants. In the case of an invoice unpaid on the due date thereof, the seller shall have the right to serve a writ against the purchaser in the purchaser s place of registered address.
ARTICLE 8 - DATA PROTECTION: The seller collects and processes personal data of the purchaser for administrative and commercial management purposes, which is agreed by the purchaser.The purchaser can request access, rectification, erasure, restriction of processing, data portability of its personal data and/or to object to the processing of its personal data by contacting seller Sales Department, rue Louis Saillant, Z.I. La Motte, 26800 PORTES-LES-VALENCE, France or at personaldata@hmclause.com.
II PROVISIONS APPLICABLE TO BUYERS/CUSTOMERS INVOICED
ARTICLE 1 - ORDERS: 1.1. Once the seller has confirmed the order, order will be met insofar as possible, and the goods shall be delivered, insofar as possible, on the dates requested by the purchaser.
Furthermore, the seller recommends that purchasers give very accurate shipping instructions. The seller declines all liability if errors occur through lack of information.
1.2. In the case of a partial or nil crop or production, caused by a case of force majeure in particular, a partial or total reduction will be applied to the order.
Deliveries will be made according to supplies and availabilities in sufficient quantity and quality. In the case of partial delivery, products will be invoiced in proportion to the quantities delivered.
Accordingly, no compensation (including in particular all damages of any nature whatsoever) may be claimed, particularly for partial delivery, non-delivery or late delivery.
1.3. The seller will only deliver seed once a germination test has been carried out on the batch concerned. In the event that the purchaser nevertheless asks the seller to deliver the seed before the germination test has been completed, the purchaser accepts full liability for the consequences of the seed batch in terms of germination.
ARTICLE 2 - PRICES: 2.1. The prices of the goods are fixed by reference to the price lists published and communicated by the seller. In accordance with the practices of the profession and taking into account technical and commercial constraints, the price of seeds which are not the subject of such a publication remains subject to a negotiation by mutual agreement between the buyer and the seller. Unless otherwise specified, the applicable prices are those in force on the day of confirmation of the order.. In any case, the purchaser will set himself his sales prices to his own customers.
2.2. The prices are understood to be excluding taxes, ex-works (last version in force of Incoterms) and excluding packaging, unless otherwise stated on the invoice. They are applicable from October 1st each year and can be modified at any time during the campaign.
2.3. Unless specific conditions apply, the price column corresponding to the quantity ordered will apply. For intermediate weighings, the basic price in the rate column immediately below this weighing will apply.
2.4. Except for specific conditions, all taxes, transport costs, insurance, certificates / certifications, authorizations, bank charges and packaging or packaging costs and all other costs, if any, are invoiced separately on the invoice issued by the seller.
2.5. An order may be subject to a minimum global amount and / or a minimum amount per variety.
ARTICLE 3 - PAYMENT: 3.1. Any payment is treated as having been made on the date on which the purchaser has made funds available to the seller (Article L. 441-3, paragraph 4 of the French Commercial Code).
3.2. Unless there are special terms and conditions or binding provisions under the governing legislation, payments are made at 30 days as from the date of the invoice, in accordance with the payment terms stated on
the invoice. With regard to purchasers who have had one or more payment incidents or more generally a dispute and who have cleared their account, purchasers who have been the subject of collective proceedings or any other similar proceedings in accordance with current governing legislation, and new purchasers, orders will be delivered for one year against immediate payment on delivery date or against payment in advance only, as the seller so wishes, because of the significant risks of insolvency, unless the seller has stipulated special terms and conditions, particularly on grounds of favourable information on the purchaser s solvency. Furthermore, and at all events, in case of unfavourable information on a purchaser s solvency, delivery will be made against immediate payment on the date of delivery or against payment in advance only, as the seller so wishes, unless the seller has stipulated special terms and conditions.
3.3. The seller will apply a discount of 0.75% of the invoiced amount (excluding VAT) in the event the purchaser pays in full within 15 days from the date of invoice, unless immediate or advance payment is required.
3.4. All the seller s goods and the corresponding invoices are payable at the latter s registered place of business.
3.5. In the case of late payment, partial payment or non payment, the seller may suspend or cancel all current orders until all sums due to him by the purchaser have been paid in full, without prejudice to any other means of action and/or damages and any interests and costs (including administrative, legal, statutory and judicial costs that the seller may support for the recovery of the sums due by the purchaser) that the seller reserves the right to claim. According to legal and statutory requirements, in addition to the other amounts and costs mentioned hereinabove, a lump sum amount of 40 uros shall have to be automatically paid to the seller in the case of late payment. The purchaser may not take any action against the seller and/or claim any compensation due to the said suspension or cancellation. Any sum not paid by the due date stated on the invoice shall lead to the penalties for late payment being applied immediately, without the need for any formality, calculated on the total amount of the invoice, including all taxes, at the rate of interest applied by the Central European Bank plus 10 percentage points (as on January 1st for the first civil semester and on July 1st for the second civil semester), and payable on the day following the payment date stated on the invoice, as well as the immediate requirement to pay all sums due for other deliveries. These terms are subject to change in accordance with the laws in force.
3.6. In accordance with the provisions on penalty clauses at articles 1231-5 and ff of the French Civil Code, any invoice not paid in full by its due date at the latest and recovered by the seller s legal department shall immediately and without the need for any formality be subject to a fixed-charge penalty of 15% of the amount of the unpaid sums.
ARTICLE 4 - RETENTION OF OWNERSHIP CLAUSE: 4.1. The seller formally retains ownership of the goods delivered until their price and applicable penalties and additional costs have been paid in full by the purchaser.
In the meaning of this provision, the remittance of bills of exchange or any other instrument creating an obligation to pay, does not constitute payment. Any deposit paid shall remain acquired by the seller, as a fixed-sum compensation, without prejudice to any other action that the seller may take.
4.2. Within the scope of the normal operation of his business, the purchaser is authorised to resell the goods delivered, but he may not assign the same in pledge or transfer ownership thereof as a security. In the event the purchaser resells them, he thereby assigns to the seller all the receivables arising for the benefit of the purchaser generated by the resale to the third party purchaser.
4.3. The authorisation to resell shall be withdrawn automatically from the purchaser in the event of his being subject to cessation of payments.
In the case of confiscation or any other action by a third party, the purchaser is obliged to inform the seller immediately and will bear the cost of the risks whatever they may be, notwithstanding the application of this clause, including in the case of loss or destruction, and this shall apply with effect from delivery of the goods. He shall also pay the costs of insurance. (07/2020)
GENERAL TERMS AND CONDITIONS OF SALE