Version dated March 31, 2022
ARTICLE 1 | DEFINITIONS
1. “CHV” means Crop Health Vision USA Inc., a Delaware limited liability company having its office at 7940 Lander Ave., Suite 3 Hilmar, CA 95324, United States.
2. “Buyer” means the natural person or legal entity, at least acting in the conduct of a profession or business with whom CHV has entered into an agreement or has the intention to do so.
3. “Agreement” means any agreement entered into between the Buyer and CHV, under which agreement CHV has undertaken to deliver Products (as defined below).
4. “Products” means any goods, such as solutions for flowers and plants on the basis of quorum sensing technology, to be delivered by or on behalf of CHV under the Agreement.
5. “Parties” means CHV and Buyer.
6. “Terms” means these General Terms and Conditions of Sale and Delivery.
ARTICLE 2 | GENERAL PROVISIONS
1. Any offer made by CHV and any Agreement entered into shall be subject to these Terms.
2. CHV explicitly rejects the applicability of any purchase or other terms and conditions of the Buyer.
3. Any variations to the provisions of these conditions of delivery shall be valid only if made in a writing signed by both parties and specifically referring to these Terms. Any express agreements between the parties made in writing and referencing these Terms shall take precedence over the provisions of these Terms.
4. The accompanying quotation or invoice (the “Sales Confirmation” and these Terms, collectively, this “Agreement”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Buyer’s general terms and conditions of purchase regardless whether or when Buyer has submitted its purchase order or such terms. Fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend these Terms.
5. The nullification or nullity of any of the provisions of these conditions of delivery shall not affect the validity of the remaining provisions. Should the occasion arise, the Parties shall commence discussions with the aim of reaching agreement on an alternative for the affected provision. The alternative shall reflect the object and import of the original provision to the extent possible.
ARTICLE 3 | OFFER AND FORMATION OF THE AGREEMENT
1. All offers made by CHV are without commitment. CHV shall not be under an obligation to accept an order.
2. Evident errors or mistakes in the offer made by CHV shall not be binding upon it.
3. The Buyer cannot derive any rights from an offer based on information provided by the Buyer that is incorrect or incomplete.
4. An offer does not automatically apply to any subsequent orders. However, these Terms shall apply to any subsequent agreements.
5. The Agreement shall be concluded by means of offer and acceptance. If the Buyer’s acceptance is at variance with the offer made by CHV, the Agreement shall not be concluded in accordance with this contrary acceptance unless CHV states otherwise in writing. Orders placed via the CHV website shall not be binding upon CHV until CHV has confirmed the order by electronic means.
6. A combined quote shall not oblige CHV to perform part of the offer at a corresponding part of the price quoted.
7. If the Buyer enters into an Agreement (also) on behalf of another natural person or legal entity, he states to have the authority to do so by entering into the Agreement. In addition to this natural person or legal entity, the Buyer shall be severally liable for meeting all obligations under the Agreement.
ARTICLE 4 | TERMS
1. If CHV’s performance of the Agreement is dependent on information to be provided by the Buyer, the term within which delivery shall take place shall not start until after CHV has received such information.
2. The Products will be delivered within a reasonable time after the receipt of Buyer’s purchase order, subject to availability of the Products. CHV shall not be liable for any delays, loss or damage in transit. The Buyer shall not exercise the rights to which he is entitled by operation of law without first having sent CHV written notice of default, stating a reasonable period within which CHV is given the opportunity to perform the Agreement after all and such performance has not taken place within the aforementioned reasonable period.
ARTICLE 5 | DELIVERY
1. The parties may agree on a purchase guarantee. The purchase guarantee binds the Buyer, in accordance with the express made agreements to that end, to purchase Products several times in a certain period. If the Buyer fails to fulfil its purchase obligation or fails to fulfil it in time, all combination discounts, retroactively and prospectively, relating to the relevant purchase guarantee shall be cancelled.
2. Subject to what is agreed by the Parties, delivery of the Products shall be made at the location (the “Delivery Point”) of CHV, any other location designated by CHV or by means of delivery at the delivery address provided by the Buyer. If no delivery address is specified, orders shall be sent to the billing address.
3. Without prejudice to any Incoterms that may apply, the risk of loss of and damage to the Products shall pass to the Buyer at the moment the Buyer or a third party designated by the Buyer has taken delivery of the Products.
4. Title and risk of loss passes to Buyer upon delivery of the Products at the Delivery Point. As collateral security for the payment of the purchase price of the Goods, Buyer hereby grants to CHV a lien on and security interest in and to all of the right, title and interest of Buyer in, to and under the Products, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing.
5. If for any reason whatsoever the Buyer refuses to take delivery of the Products or fails to provide information or instructions required for the delivery, the Products shall be put into storage for the risk and account of the Buyer after the Buyer has been warned about this by CHV. In such instances the Buyer shall pay to CHV a reasonable price for the storage of the Products, in addition to the purchase price.
6. CHV is allowed, without liability or penalty, to deliver orders in parts. If orders are delivered in parts, CHV is entitled to invoice each part separately.
ARTICLE 6 | SUPPLEMENTAL PROVISIONS FOR THE RESALE OF PRODUCTS
1. If the Buyer uses the Products for resale, this Article shall apply likewise.
2. The Buyer shall be required to resell the Products in its own name and for its own account. The Buyer shall not at any time have the right to represent CHV as agent or otherwise.
3. The Buyer shall present the trademarks carried by CHV and the Products delivered in a prominent and consistent manner in accordance with the image of the trademarks carried by CHV. Advertisements and other communications with the Buyer’s customers must be consistent with the image projected by the trademarks that CHV carries. The Products shall be presented in such manner that the nature of the trademarks of the Products supplied by CHV is not prejudiced.
4. Each presentation of the Products supplied shall be submitted to CHV prior to publication, as directed by CHV, if and to the extent any of the graphics or text-related elements in the presentation are not directly provided by CHV. CHV shall not withhold its approval on unreasonable grounds.
ARTICLE 7 | FORCE MAJEURE
1. CHV shall not be required to fulfil any obligation under nor deemed to have defaulted under or breached this Agreement if it is hindered by a circumstance which cannot be attributed to it pursuant to the law, a legal act or in accordance with generally accepted principles. Force majeure shall also be understood to mean the circumstance where the actions of CHV’s suppliers prevent it from delivering the Products or from delivering them on time.
2. Throughout the period of force majeure, the obligations of CHV arising from the Agreement shall be suspended.
3. If the force majeure has rendered the performance of the Agreement permanently impossible, or if the situation of force majeure persists or is likely to continue for more than three months, the Parties shall be entitled to terminate the Agreement with immediate effect.
4. If upon the occurrence of the situation of force majeure CHV has already met part of its obligations or can fulfil only part of its obligations under the Agreement, it is entitled to charge the Buyer separately for that part of the Agreement that has already been performed or can be performed as if it were a separate Agreement.
5. Any loss resulting from force majeure does not at any time qualify for compensation.
ARTICLE 8 | SUSPENSION AND TERMINATION
1. If justified by the circumstances, CHV shall be entitled to suspend the performance of the Agreement or to terminate the Agreement with immediate effect, if the Buyer fails to fulfil the obligations arising from the Agreement or from these conditions of delivery on time or in full, or if following the conclusion of the Agreement circumstances have come to CHV’s attention which give it reasonable grounds to fear that the Buyer will not meet its obligations.
2. (i) If the Buyer fails to pay any amount when due under this Agreement, (ii) if the Buyer becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors, or (iii) if any attachment is levied on his goods or if he is otherwise unable to freely use his assets, CHV shall be entitled to terminate the Agreement with immediate effect, unless in the opinion of CHV the Buyer has provided sufficient security for payment.
3. In addition, CHV shall be entitled to terminate the Agreement if circumstances occur which are such that performance of the Agreement is rendered impossible or if CHV cannot reasonably be required to maintain the Agreement in unchanged form.
4. The Buyer shall not at any time claim compensation, in whatever form, in connection with the right to suspend performance and the right to terminate exercised by CHV pursuant to this article.
5. The Buyer shall compensate CHV for loss that CHV suffered as a consequence of the suspension or termination of the Agreement to the extent such loss can be attributed to the Buyer.
6. If CHV terminates the Agreement pursuant to this article, all amounts receivable from the Buyer shall be immediately due and payable.
ARTICLE 9 | INSPECTION AND COMPLAINTS
1. The Buyer shall inspect the Products immediately upon delivery to ascertain whether their nature and quantity are in conformity with the Agreement. If according to the Buyer the nature and quantity are not in conformity with the Agreement, he must immediately notify CHV at the time of delivery.
2. The Buyer shall notify CHV of any hidden defects within seven days after he has discovered the defect or in all reasonableness should have discovered the defect.
3. CHV is not obliged to respond to any complaints for hidden defects from the Buyer if the Buyer does not file his complaint in a timely manner in accordance with these Terms.
4. The submission of complaints does not suspend the Buyer’s obligation to pay.
ARTICLE 10 | PRICES AND PAYMENTS
1. If delivery has been agreed, the shipping and delivery costs shall be paid by the Buyer unless otherwise specified.
2. Unless otherwise specified, all prices and costs provided are exclusive of VAT and any other charges imposed by the authorities.
3. If following the conclusion of the Agreement, but before the delivery of the Products the VAT rates or other charges imposed by the authorities are changed, CHV has the right to change the prices accordingly.
4. CHV also has the right to pass on to the Buyer any increase in prices of cost-determining factors that occur after the conclusion of the Agreement, but before the delivery of the Products.
5. If in the opinion of CHV there are grounds to reasonably suspect that the Buyer will be negligent in fulfilling his payment obligations, CHV has the right to demand that the Buyer provide adequate security for payment. In the event of advance payment, the Buyer cannot exercise any rights in respect of the execution of the Agreement as long as the advance payment has not been made.
6. In the event of the winding up, bankruptcy or suspension of payment of the Buyer’s business, any outstanding amounts shall become due and payable with immediate effect.
7. Payment shall be made by transfer within the period specified in the invoice and in the manner prescribed by CHV, unless expressly agreed otherwise.
8. If payment by direct debit collection is agreed, CHV shall be entitled to charge reasonable administrative costs if the amount due cannot be collected automatically on several occasions. In that case the Buyer shall be required to make payment, including administrative costs, by transfer within the period specified on the invoice and in the manner prescribed by CHV.
9. In the event of failure to pay, the Buyer shall be in default by operation of law. From the date of the occurrence of the default, the Buyer shall be liable to pay interest of 1% per month. Part of a month counts as a full month in this context.
10. All reasonable costs incurred to collect the amounts due are to be paid by the Buyer.
ARTICLE 11 | LIABILITY
1. CHV shall not be liable for any damage to the Products supplied or as a result of the use of these Products, save for willful misconduct or gross negligence on the part of CHV.
2. CHV shall at all times be entitled to repair the damage incurred by the Buyer. To that end the Buyer shall enable CHV to make such repairs, failing which all CHV’s liability shall cease.
3. CHV shall in no event be liable for any consequential, indirect, incidental, special, exemplary or punitive damages, including lost profits, and loss and/or damages incurred as a result of business interruption. If, in spite of the provisions of these conditions of delivery, CHV is liable after all, only direct losses shall be compensated.
4. If on the basis of the circumstances of the case any further liability should arise on the part of CHV, such liability shall be limited to that part of the Agreement to which the liability relates and shall in no instance exceed the amount received by CHV under the relevant invoice.
5. The liability shall not exceed the amount that will be paid in relation to the relevant case under any liability insurance taken out by CHV.
6. Without prejudice to the other provisions of these conditions of delivery, the limitation period for all claims and remedies against CHV shall be one (1) year from the date of shipment of the applicable Product.
7. Except in the case of fraud or gross negligence on the part of CHV, the Buyer shall indemnify CHV against any claims made by third parties for whatever reason for damages, costs, expenses or interest arising out of or resulting from the use of the Products supplied by CHV.
ARTICLE 12 | PERSONAL DATA
ARTICLE 13 | FINAL PROVISIONS
1. Buyer shall comply with all applicable laws, regulations and ordinances. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement.
2. All non-public, confidential or proprietary information of CHV, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by CHV to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by CHV in writing.
3. Each Agreement and any legal relationships between the Buyer and CHV arising therefrom shall be exclusively governed by, and construed in accordance with, the laws of the State of Delaware, United States of America, without regard to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of Delaware.
4. Any dispute arising out of or in relation to these conditions of delivery shall be settled exclusively by the Court of Chancery of the State of Delaware; provided that if such court does not have jurisdiction, any such proceeding shall be brought exclusively in the United States District Court for the District of Delaware or any other state court sitting in the State of Delaware.