REFERENCE SALES AND DELIVERY CONDITIONS OF SELECTA CUT FLOWERS S.A.U.

 

I. The area of application of the Standard Terms of Sale and Delivery

(1) These will be the sole reference sales and delivery conditions of Selecta Cut Flowers S.A.U., (excluding all others) that Selecta Cut Flowers S.A.U. (hereafter "the Seller") will apply to all its sales and deliveries of plants (hereafter referred to as the “goods”).  


(2) It is   expressly stated that any other sales conditions than the Seller or that contradict them will be null and void. This exclusion of the Buyer’s sales conditions will apply even when the Buyer makes deliveries to the Seller and does not express any reservations, in the knowledge of these contradictory sales conditions.


II. Prices and terms of payment


(1) The prices in the Seller's offers are net prices before value added tax.


(2) In as far as nothing to the contrary is agreed the prices in the offer are quoted  ex works including loading. In the case of goods which are delivered directly to the Buyer by one of the Seller's suppliers on the instructions of the Seller, the prices are quoted ex the agreed destination airport including loading, but in both cases exclusive of packaging, freight, transport (possibly from the agreed destination airport), insurance and customs duty.


(3) The Buyer shall only be entitled to deduct a cash discount in as far as such a discount is included in the Seller's offer.


(4) If the agreed delivery date falls more than 4 months after the formation of the contract, and there have been increases in the costs of materials, raw materials, wages and salaries, production, transport or energy, the Seller shall be entitled to demand a higher price to take account of and compensate for these higher costs.


(5) The purchase price shall be due for payment when the Seller issues an invoice or after delivery. If no different payment dates are agreed in the contract or stated in the invoice, the Buyer shall be in default 30 days after the receipt of the invoice without any reminder being required. This shall have no bearing on the Seller's option of putting the Buyer in default by sending a reminder.


(6) As of the moment that the Buyer enters a situation of arrears, interests will accrue for the pending amount at the highest of the following interest rates: 8% annually over the base tariff, or, in the event that the Buyer is an entrepreneur in accordance with the Code of Trade, at the applicable interest rate under Law 3/2004 on Late Payments in Commercial Transactions.


(7) If, after the formation of the contract,  the Seller should become aware of facts which give grounds for justified doubts regarding the Buyer's solvency, the Seller shall be entitled to demand part payment or a security before making any deliveries. The Seller shall be entitled to set the Buyer a deadline for remitting payment or providing a security. The Seller may rescind the contract after the expiry of this deadline . This shall not affect any further rights which the Seller may have.


(8) Payments to the Seller's staff may only be made if they have been expressly authorised to accept such payments.


(9) The Seller will only accept cheques and bills of exchange on account of payment. The charges for redeeming cheques or bills of exchange (particularly cheque and bill charges) shall be borne by the Buyer.


(10) The Buyer shall only have the right to set off claims against the claims of the Seller if these claims are non-appealable, undisputed or recognised by the Seller.


(11) The Buyer shall only be entitled to exercise a right of retention if its counter-claim is based on the same contract. 

III. Delivery date


(1) The delivery dates stated in the Seller's offers are estimated dates based on the fact that the natural material isn’t to a hundred percent controllable. The Seller shall be entitled to deliver the goods up to two weeks before the delivery date stated in the offer or up to four weeks after this delivery date. The Seller shall not be in default before the expiry of four weeks after the delivery date stated in the offer. The aforesaid rules shall not apply in as far as the Seller has promised or guaranteed a firm delivery date.


(2) The Seller shall notify the Buyer of the probable delivery week by no later than the last working day of the week which precedes the delivery week.


(3) Deliveries shall be made subject to the reservation that the Seller is itself supplied with the right goods in good time. If the Seller has ordered the goods from a supplier in good time and the reasons for the late or incorrect delivery to the Seller are no fault of the Seller's and the Seller is not able to offer the Buyer any comparable goods or the Buyer has justifiably refused the delivery of comparable goods (see IV..2), the Seller shall be released from its obligation to effect delivery.

IV. Delivery


(1) The Seller shall have the right to make part delivery to a reasonable extent.


(2) If the agreed goods are not available (particularly the agreed species) the Seller shall have the right to deliver comparable goods to the Buyer. If the Buyer is not interested in the comparable goods for objectively justified reasons, the Buyer may rescind the contract.


(3) When the goods are shipped, the risk of their deterioration or loss shall pass to the Buyer when they are handed over to the carrier or forwarding agent. This shall also apply if delivery has been agreed at no charge to the customer.


(4) The Seller shall insure goods to the Buyer's benefit against damage occurring during transport and against quarantine. The transport insurance shall only cover damage for which notification is given within 48 hours of delivery. For this reason the Buyer must immediately examine the goods for damage that may have occurred during transport and report such damage to the Seller within 24 hours of delivery, if such damage is ascertained.


(5) To the extent that the Buyer is an entrepreneur subject to the terms of the Code of Trade, the Buyer must examine the delivery immediately to see whether there are visible defects and claim against the Seller. The Buyer will make a complaint with regard to defects that may become evident later, within the two days following delivery of the defective goods. 



V. Reservation of title


(1) The sold goods shall remain the property of the Seller (goods under reservation of title) until the full payment of all liabilities under the business relationship between the Seller and the Buyer.


(2) The Buyer must treat the goods under reservation of title and which are the property of the Seller with good care.


(3) If the goods under reservation of title are seized by third parties the Buyer must notify the Seller immediately.


(4) The Buyer shall have the right to process and sell the goods under reservation of title within the framework of proper business dealings.


(5) The goods under reservation of title shall be processed on the Seller's behalf. In as far as the Seller becomes the ownership of a new item produced as a result of the processing, it is agreed that the Buyer shall also have an inchoate title to the new item.


(6) If the goods are inseparably joined to or blended with other items, the Seller shall become co-owner of the new item in ratio between  the price which the Seller has invoiced for the goods under reservation of title and the value of the other items processed or blended at the time of processing or blending. The Buyer's inchoate title to the goods under reservation of title shall continue in relation to the joint property acquired by the Seller.


(7) If the goods under reservation of title or an item to which the Seller has acquired a joint right of ownership through processing, inseparable joining or blending, the Buyer assigns to the Seller its claims against its customers or third parties from the resale of such an item to the sum of the amount  (including value added tax) which the Seller invoiced to the Buyer for the goods supplied under reservation of title. The Buyer shall remain authorised to collect the sum of the claim in its own name and on the Seller's behalf.


(8) The Seller must release the claims assigned as a security if the realised value of the claims exceeds the sum of the Seller's secured claims by more than 10 %.


(9) The Seller may revoke the authorisation to collect outstanding claims and collect the sums of the claims in its own name, if the Buyer defaults on its regular payments. In the event of such a revocation, the Buyer must provide the Seller with information concerning the names of its debtors and must disclose the assignment to the debitors.

VI. Guarantee


(1) The Buyer's rights under guarantee due to a defect in the goods supplied shall be based on the statutory provisions in as far as nothing to the contrary results from the following provisions in this clause and in clause VII. Liability.


(2) In as far as a claim for damages accrues to the Buyer due to a defect in the goods, the provisions regarding liability in clause VII. Liability shall apply.


(3) There will be no warranty for defective goods when the Buyer is an entrepreneur under the Code of Trade and goods is considered satisfactory, even if it is defective, because the Buyer has not examined the goods or made an immediate claim with regard to the visible or subsequently visible defect after the period stipulated in Clause IV section 5.

VII. The Seller's liability


(1) In cases of personal injury the Seller shall be liable according to the statutory provisions.


(2) If the Buyer asserts claims for damages or claims to compensation for expenses due to slight negligence on the part of the Seller, the Seller shall only be liable for the typical foreseeable damage. The same shall apply in commercial transactions in the case of gross negligence on the part of a vicarious agent who is not a member of the Seller's executive staff. The Seller draws the Buyer's attention to the fact that it must take out insurance in the individual case, .e.g. if there is any possibility of substantial damage occurring.


(3) If the Buyer asserts claims for damages or claims for compensation due to an intentional or grossly negligent breach of duty on the part of the Seller, the Seller, in departure from III.3, shall have unlimited liability for its vicarious agents without prejudice to the foregoing provision.


(4) The Seller, in departure from VII. 2. sentence 1, shall only be liable for damage due to default caused by slight negligence on the part of the Seller, to the sum of 5 % of the agreed purchase price (excluding VAT).


(5) In all other cases the Seller is exempt from liability. This will also apply when the Seller is not obliged to make the delivery in accordance with III. 3. This exemption and limitation of liability will also apply to extra-contractual liability. 


(6) In case of Force Majeure the Seller’s liability shall also be excluded. Such cases are, for example, fire, thunderstorms, earthquakes, strikes, traffic accidents, hostage-taking, wars, disturbances or other acts of nature.


(7) The foregoing provisions limiting and excluding liability shall not apply to damage sustained due to the failure to comply with a delivery date or a defect in the goods in as far as the Seller has given an assurance or a guarantee regarding the delivery date or the quality of the goods.


VIII. Intellectual property rights


(1) The Seller shall charge a fee for using its intellectual property rights  including industrial property rights (Plant Breeders’ Rights and Protection of Trademarks), Copyrights and Image Rights. This fee shall be displayed separately on the invoice as royalty. 


(2) Provisions regarding Plant Breeders’ Rights

(a) The goods (plants) that are protected by Plant Breeders’ Rights may only be cultivated and processed as potted plants or cut flowers and/or sold as such.. The Buyer may particularly not give the goods to third parties, use or process them for propagation purposes, circulate them for the said purposes nor import or export them. Infringements will result in an immediate penalty of EUR 0,50 per illegally propagated  plant or plant given to third parties. This penalty doesn’t affect the legal rights of the supplier to claim real damages from the infringer.

(b) The Buyer must indicate the correct variety denomination on all invoices and other business papers.

(c) The Buyer acknowledges that mutations/sports found in the goods are subject to the plant breeders’ rights of the owner of the protected varieties being essentially derived varieties in the meaning of the PBR Law and that for this reason they may not be exploited for commercial purposes without the consent of the owner of the rights of the protected varieties. The Buyer shall give notice to the Seller immediately after having detected such mutation/sport and to entitle the Seller to inspect the mutation/sport during normal business hours. 

(d) The Buyer of goods protected by plant breeders’ rights shall be obliged to allow persons authorised by the Buyer to make controls of the protected varieties at any time and without prior announcement during the normal business hours and to particularly allow these persons to enter the Buyer’s premises and to inspect the production and development facilities and to give them the information necessary to assert the right to control the goods. At the Buyer's request the persons engaged by the Seller shall prove their authorisation to the Buyer by showing a written authorisation from the Seller. The Seller undertakes to ensure that the controllers maintain confidentiality regarding other company secrets which they may notice within the framework of their inspections.


(3) Provisions regarding Trademark Rights

(a) The Seller has assigned to each of its varieties a certain trademark. By paying the goods and the Intellectual Property Access Fee brought to account the Buyer shall become entitled to use, in addition to the variety denomination, the trademark corresponding to the variety when selling the respective variety. 

(b) Using the trademark the Buyer has to ensure the proper identification of the trademark as such and that it is clearly distinguishable from the variety denomination. This can be done by adding ® or at least TM to the trademark and by avoiding that the trademark isn’t used in direct connection with the variety denomination. The Buyer shall only use labels delivered by the Seller to ensure an uniform image of variety and the trademark. The use of a trademark on other than the delivered labels is subject to prior written approval of the owner of trademark owner. 


IX. Applicable law, place of jurisdiction, amendments and severability


(1) The contract will be governed by Spanish law. The United Nations Convention on Contracts for the International Sale of Goods (CISG) will not apply to this contract.


(2) To resolve any conflict in the interpretation or execution of what is agreed in this contract, the parties submit to the Courts of Barcelona, renouncing any other jurisdiction that may legally apply.


(3) Even if this contract and these Sales and Delivery conditions are translated into a language other than Spanish, the original version of the Contract and the original version of these Reference Sales and Delivery Conditions will be binding.


(4) Amendments to the contract may only be made in writing (also by fax).


(5) If any provision of the contract or of these Standard Terms of Sale and Delivery should be or become void, the remainder of the contract shall nevertheless remain valid. In this case the Seller and the Buyer undertake to replace the void provision by a valid provision which gives best effect to the intended commercial purpose in as far as there are no statutory provisions which can be implied into the contract to fill any possible gap.

June 2011