BEJO SEEDS TERMS AND CONDITIONS OF SALE
1. Applicability of Terms and Conditions.
1.1 The parties contemplate that from time to time Buyer will order goods from Bejo Seeds, Inc., a California corporation (“Bejo”). To facilitate the placement and processing of such orders. Buyer and Bejo agree that these terms and conditions are applicable to each order submitted by Buyer and each offer and each agreement between Buyer and Bejo.
1.2 Buyer agrees to all of these terms and conditions and further agrees that, to the extent they may be additional or different from those in any documents submitted to Bejo by Buyer, these terms and conditions shall control.
1.3 No purchase order from Buyer is binding upon Bejo unless executed by Bejo's authorized representative and delivered to Buyer.
2. Offers Made by Bejo. Offers made by Bejo are non-binding unless otherwise indicated. A non-binding offer can be revoked by Bejo up to three (3) working days after receipt of the Buyer's acceptance.
3. Exclusion of Crop Failure. All orders accepted by Bejo are subject to crop and processing results. Fulfillment of such order is not guaranteed. Should the seed crop fail or if the seeds become unusable after processing, Bejo shall not be obligated to deliver the seed ordered. Bejo will endeavor to deliver quantities prorated among each customer or comparable alternatives. THE BUYER IS NOT ENTITLED TO ANY COMPENSATION WHATSOEVER FOR BEJO'S FAILURE TO DELIVER THE QUANTITY OF SEED ORDERED BY BUYER. Buyer hereby waives any right to receive information regarding the crop except to the extent requested in writing by Buyer after the acceptance of an order.
4. Shipping, Delivery and Acceptance.
4.1 Seeds shall be delivered F.O.B. Buyer's dock, surface freight prepaid and billed to Buyer or otherwise placed at Buyer's disposal according to Buyer's instructions and at Buyer's cost.
4.2 If the Buyer refuses delivery or provides inadequate delivery instructions, the seeds will be stored for the Buyer at Buyer's risk and cost.
4.3 The agreed delivery time is only an estimate, not a guarantee. The Buyer shall inform Bejo in writing when a delivery is overdue and shall allow reasonable time to perform delivery. Buyer hereby waives any right to be notified by Seller of Seller’s intent to ship or actual shipment except to the extent requested in writing by Buyer after the acceptance of an order.
4.4 Buyer agrees to notify Bejo immediately in writing at the address specified below of nonacceptance of any seeds and the defects resulting in such nonacceptance; if Bejo does not receive written notice of nonacceptance of the seeds within five (5) working days after delivery, Buyer shall be deemed to have accepted the seeds.
5. Payment. Payment in full shall be made no later than thirty (30) days from the date of invoice; otherwise, Buyer shall be in breach hereof. Buyer will incur a charge of one and one-half percent (1.50%) per month on the unpaid balance to cover the administration costs of collection and other costs. Such charges are in addition to other remedies available to Bejo.
6. Security. Until Bejo receives payment in full, Buyer hereby grants to Bejo a purchase money security interest in the seeds shipped and in the proceeds of any such goods. Buyer agrees to execute and hereby authorizes Bejo to file financing statements under the Uniform Commercial Code or other similar provisions of law in order to protect its security interest in the goods. Buyer represents that Buyer is solvent and able to pay its obligations when due. IF BUYER BECOMES INSOLVENT, DEMAND IS HEREBY MADE FOR THE RETURN OF ANY SEEDS SHIPPED UNDER THIS AGREEMENT. Buyer shall not further encumber the goods until Bejo is paid in full.
7. Taxes. Buyer agrees to pay sales or other similar taxes on all orders where required by law.
8. Variety Descriptions and Illustrations.
8.1 Descriptions and illustrations appearing on Bejo labels or Bejo literature represent its products as grown in its trial gardens, including susceptibility of a given product to insects and diseases. Appearance and performance may vary in other geographic locations and under different growing conditions. Buyer should investigate whether differences may be expected in its growing area. It is Buyer's responsibility to determine whether the seeds are suitable for Buyer's conditions and area.
8.2 Differing degrees of specificity exist in the relations between plants and pests or pathogens. Identification of such specificity generally requires the use of highly elaborate analytical methods. Recognizing whether a plant is susceptible to a pest or pathogen or not may depend on the analytical method employed. It is important, in general, to stress that the specificity of pests or pathogens may vary over time and space, depends on environmental factors, and that new pest biotypes or new pathogen races capable of overcoming resistance may emerge.
Immunity: not subject to attack or infection by a specified pest or pathogen.
Resistance: the ability of a plant variety to restrict the growth and development of a specified pest or pathogen and/or the 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:
i. 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.
ii. 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 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 or pathogen pressure.
Susceptibility: the inability of a plant variety to restrict the growth and development of a specified pest or pathogen.
9. Limited Warranty and Disclaimer of Warranties.
9.1 Bejo warrants that all seeds sold hereunder: (i) have been, to its best knowledge, labeled as required under applicable state and federal law; and (ii) the seed conforms to the label description, within recognized tolerances. BEJO MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, AND BEJO DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE. This warranty shall only be provided for a period of six (6) months from germination date provided on the package ("Warranty Period"). This warranty shall only apply to the original purchaser unless Buyer is expressly authorized by Bejo in writing to resell the seeds, in which case the warranty shall only apply to the first repurchaser. Subject to notification of a claim as provided in paragraph 10 below, during the Warranty Period, Bejo will promptly replace the seeds which do not conform to Bejo's express warranty as stated above, or at Bejo's option, refund the purchase price to Buyer.
9.2 This warranty shall not apply to damage resulting from (i) loss or damage in transit, (ii) unreasonable use, (iii) negligence on the part of the Buyer, (iv) accident, (v) infringement, (vi) improper labeling or (vii) otherwise arising from re-sale or other transfer, treatment, conditioning or modification of the product. Bejo reserves the right to examine the alleged defective product or the plants resulting from the seed and the associated label and documents to determine if the warranty is applicable.
10. Limitation of Liabilities.
10.1 LIABILITY FOR DAMAGES FOR ANY CAUSE, INCLUDING (BUT NOT LIMITED TO) BREACH OF CONTRACT, BREACH OF WARRANTY, OR TORT, INCLUDING ANY NEGLIGENCE OR INTENTIONAL ACT WHATSOEVER ON THE PART OF BEJO WITH RESPECT TO THE SALE, PERFORMANCE, TRANSFER, USE, EXPORT OR IMPORT OF THE SEEDS, IS LIMITED TO REPLACEMENT OF ANY DEFECTIVE PRODUCTS OR TO A REFUND OF THE PURCHASE PRICE OF THE SEEDS AT THE OPTION OF BEJO. THIS REMEDY IS EXCLUSIVE. BEJO SHALL NOT BE LIABLE FOR CONTINGENT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES TO PERSONS, CROPS OR PROPERTY OR FOR ANY OTHER REASON, INCLUDING LOSS OF PROFITS. BEJO'S SOLE LIABILITY AND BUYER'S EXCLUSIVE REMEDY ARE AS PROVIDED IN THIS PARAGRAPH 10. SHOULD BUYER WISH TO OBTAIN DIFFERENT RIGHTS THAN SET FORTH HEREIN, IT MAY NEGOTIATE WITH BEJO TO OBTAIN SUCH ADDITIONAL RIGHTS AT AN INCREASE OF THE PURCHASE PRICE OF THE SEEDS.
10.2 No claim for breach of warranty, contract, tort or other loss or liability shall be asserted against Bejo unless Buyer reports to Bejo within a reasonable period after discovery (not to exceed thirty (30) days), any condition that might lead to an action, claim or complaint.
10.3 Information contained in any catalog, brochure, website, or other document of Bejo or its affiliates, is given after the exercise of due care in its compilation, preparation and issue. However, Bejo hereby disclaims any liability resulting from such information, except for the obligation under the warranty provided in paragraph 9 above, to replace the product or refund the purchase price paid by the Buyer at Bejo's option.
10.4 Though Bejo has taken reasonable precautions in testing its products for germination, purity and seed borne disease, Bejo's liability is limited as provided in this Agreement. Buyer acknowledges that the price of Bejo's products would be much greater if more extensive liability assumed by Bejo. Without limiting the generality of the forgoing, Bejo specifically disclaims any liability for seeds resold in other than Bejo's original packages, or seeds treated or conditioned by customers. Upon being instructed by a dealer that a seed lot is to be sent to a third party seed treatment facility, Bejo will take a sample of the seed and retain it for two (2) years. Prior to shipment to the customer, the dealer will take a sample of the treated seed and retain it for two (2) years. Further, Bejo makes no representation regarding the freedom of its products from seed borne diseases and disclaims any liability relating to such diseases whether previously known to exist or identified after the seed is grown. If Buyer orders untreated seed, the Buyer shall either treat the seed prior to sale to the end user (or, alternatively, inform Buyer’s customers of the disease risks of using untreated seed) or prior to planting. Buyer assumes all risk and Bejo disclaims all liability for any and all crop diseases that may arrise from the use of untreated seed.
10.5 Bejo does not warrant that the conventional and organic seed produced by Bejo is completely free of genetically modified organisms (“GMO”). Due to events outside the reasonable control of Bejo, including (but not limited to) adventitious pollen contamination due to pollen drift caused by wind and/or insects, Bejo specifically disclaims any warranty as to complete freedom from GMO.
11. Indemnification. Buyer agrees, to the maximum extent provided by law, to indemnify, defend (with counsel acceptable to Bejo), and hold harmless Bejo, its agents, subsidiaries and shareholders, from and against any and all liabilities, costs, losses, damages and expenses, including attorneys' fees, in any suit, claim, demand or otherwise arising out of or relating to any act, representation or misrepresentation (whether express or implied), negligence or omission of Buyer, its agents, employees, representatives or transferees, including (but not limited to) those suits, claims, and demands arising from or relating to the transfer, resale, treatment, conditioning or other modification of the goods sold by Bejo to Buyer (including, but not limited to) claims, demands or suits based on strict liability in tort, infringement, products liability, negligence, personal injury, express or implied indemnity and breach of express or implied warranty.
12. IMPORTANT PROHIBITIONS AND CONDITIONS ON USE OF PRODUCT. BEJO GRANTS TO BUYER, A LIMITED NON-EXCLUSIVE, NON-TRANSFERABLE RIGHT TO USE THE PRODUCT PURCHASED HEREUNDER FOR THE SOLE PURPOSE OF PRODUCTION OF A SINGLE CROP FOR PROCESSING AND/OR FRESH MARKET. BUYER AGREES NOT TO REPRODUCE (SEXUALLY OR ASEXUALLY) PRODUCTS, MULTIPLY PRODUCTS, STOCK PRODUCTS FOR USE IN RESALE, FOR EXPORT OR FOR MULTIPLICATION, NOR SUBJECT THEM (NOR THEIR POLLEN OR ANY OTHER PLANT PART) TO ANY BREEDING, SEXUAL OR ASEXUAL PROPAGATION, BIOTECHNOLOGY PROCESS, OR ANY OTHER GENETIC MANIPULATION TECHNIQUES, INCLUDING (BUT NOT LIMITED TO) TISSUE CULTURE, GENETIC FINGERPRINTING OR TRANSFORMATION TECHNIQUES. BUYER AGREES NOT TO RESELL OR TRANSFER THE PRODUCTS TO A THIRD PARTY UNLESS BEJO HAS CONSENTED IN WRITING AND ANY SUBSEQUENT BUYER HAS AGREED TO THIS RESTRICTION IN WRITING. EXPORT OF THE PRODUCT AND THE CROP PRODUCED THEREFROM FOR PLANTING, BREEDING, SEXUAL OR ASEXUAL PROPAGATION, AND/OR BIOTECHNOLOGY PURPOSES IS PROHIBITED WITHOUT BEJO’S PRIOR WRITTEN CONSENT. BUYER AGREES THAT BEJO, OR ITS REPRESENTATIVES OR AGENTS, SHALL HAVE THE RIGHT AT ALL REASONABLE TIMES TO INSPECT AND EXAMINE BUYER’S BUSINESS RECORDS AND/OR BUSINESS RECORDS OF ANY THIRD PARTY ACTING ON BEHALF OF THE BUYER THAT RELATE TO THE PRODUCT. IN THE EVENT THAT BEJO OR ITS REPRESENTATIVES OR AGENTS HAVE SUSPICIONS THAT PRODUCT IS BEING MULTIPLIED AND/OR REPRODUCED, BEJO AND ITS REPRESENTATIVES SHALL BE GIVEN IMMEDIATE DIRECT ACCESS TO BUYER’S BUSINESS AND/OR BUSINESS RECORDS AND/OR BUSINESS RECORDS OF ANY THIRD PARTY ACTING ON BEHALF OF THE BUYER THAT RELATE TO THE PRODUCT. BUSINESS RECORDS SHALL INCLUDE BUT ARE NOT LIMITED TO THE BUYER’S GREENHOUSE AND ANY GREENHOUSE BELONGING TO ANY THIRD PARTY ACTING ON BEHALF OF BUYER.
13. Trademarks. Trademarks and/or numbers and experimental code numbers are Bejo's property at all times and shall only be used in connection with Bejo's products.
14. Modification, Waiver and Entire Agreement. This document constitutes the entire agreement between Bejo and Buyer. No modification, waiver or amendment hereof shall be binding unless executed in writing by the parties. THE TERMS PROVIDED IN THIS AGREEMENT SHALL PREVAIL OVER ANY VARYING, ADDITIONAL OR CONFLICTING TERMS in any document provided by Buyer, or in any catalog, brochure, website or other document prepared by Bejo.
15. Applicable Law. This agreement will be governed by and construed in accordance with the laws of the State of California and laws of the United States of America.
16. Agreement Dispute. If any legal action, arbitration or other proceeding is brought for the enforcement of this Agreement, including the terms for payment provided above, or because of an alleged dispute, breach, default or misrepresentation in connection with any of the provisions of this Agreement, the prevailing party shall be entitled to recover reasonable attorneys' fees incurred in that action or proceeding, in addition to any other relief to which it may be entitled. In addition, Buyer shall be responsible for all costs of
collection and amounts not paid for goods, whether or not legal action is brought, including administrative costs, attorneys' fees and accounting fees.
17. Severability. If any term, provision, or condition of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions shall remain in full force and shall not in any way be affected, impaired or invalidated.
18. Contractual Arbitration. With the exception of the disputes arising out of paragraph 5 (Payment), any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association (“AAA”) in accordance with its Commercial Arbitration Rules including the Emergency Interim Relief Procedures, or for sales made internationally, the International Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.
18.1 Applications for arbitration shall be made in conformity with the provisions of the applicable rules of the AAA. Applications for arbitration hereunder shall be made within the following time limits:
(i) In all cases arising under paragraph 4.4 (Acceptance) or paragraph 9 (Warranty), within thirty (30) days after the earliest to occur of any of the following: (1) a written complaint setting forth the basis for such complaint with specificity has been left unanswered for twenty-one (21) days; (2) parties had not had any contact during any period of twenty-one (21) days after friendly negotiations had started; or (3) it has become clear that the negotiations have not resulted in amicable settlement; and
(ii) In all other cases, within thirty (30) days after it has become clear that there exists a dispute between the parties that cannot be solved amicably.
Notwithstanding the foregoing, in each case the Application for Arbitration must be submitted no later than the time limits set forth in the applicable rules of the AAA, as such may be extended by arbitrators in special cases at their discretion. The arbitrators shall not have the power to commit errors of law or legal reasoning, and the award of the arbitrator(s) shall be vacated or corrected for any such error or any other grounds specified in California Code of Civil Procedure section 1286.2 or section 1286.6.
19. Notice Regarding Arbitration/Conciliation/ Mediation Required by Several States. Under the seed laws of several states, arbitration, mediation or conciliation is required as a prerequisite to maintaining a legal action based upon the failure of seed to which this notice is attached to produce as represented. If required by applicable state law, the Buyer or the consumer of the seed shall file a complaint (sworn for AR, FL, IN, MS, SC, TX, WA; signed only CA, GA, ID, ND, SD) along with the required filing fee (where applicable) with the Commissioner/Director/Secretary of Agriculture, Seed Commissioner, or Chief Agricultural Officer within such time as to permit inspection of the crops, plants or trees by the designated agency and Bejo. A copy of the complaint shall be sent to Bejo by certified or registered mail or as otherwise provided by state statute.
20. Consent to Jurisdiction and Venue. Subject to paragraphs 10 and 18 above, Buyer agrees that any arbitration, suit, action or other legal proceeding arising out of or in connection with this Agreement shall be brought in the County of San Luis Obispo, State of California, and hereby consents to the jurisdiction of any such panel or court in any such arbitration, suit, action or proceedings. Buyer hereby waives any objection which it may have to the requirement that any suit, action or proceeding must be in such county.
21. Force Majeure. Bejo shall not be liable for delays or failure to perform any obligation to Buyer due to any cause beyond Bejo's reasonable control such as acts of God, acts of Buyer, acts of civil or military authority, labor disputes, fire, riots, civil commotions, sabotage, contamination, war, embargo, blockage, floods, earthquakes, epidemic, quarantine, delays in transportation, or when due to governmental restrictions, shortage of power, labor, crops, materials and supplies.
The parties agree that the terms and conditions provided above shall apply to all orders of product placed from Buyer to Bejo.