General Terms and Conditions of Sale (Vitalis ref. no. EX2015) Article 11 - Use (License) of the Products and Product Information 1. Vitalis grants the Buyer a non-exclusive, non-transferable and limited license for the duration of the Agreement to use the Products for the sole purpose of a single commercial production or cultivation and sale of Plant Material. 2. The Buyer must not use or cause or permit the use of the Products or Plant Material for any research, breeding, molecular or genetic analysis, crop, seed (re)production, propagation and/ or multiplication or for any other purpose other than commercial production or cultivation of Plant Material in accordance with this Article. 3. The Buyer is - except with prior written consent and subject to any conditions from Vitalis - not permitted to supply any Product to any other person or entity for production or cultivation nor distribute, sell, transfer, sublicense, encumber, mortgage, pledge, offer as security any Product to and/or on behalf of any (legal) person or entity. 4. In the event that the Buyer who after receiving written consent from Vitalis sells and transfers Products to a third party shall expressly impose the obligations of Article 11, paragraph 1, 2 and 3 on that third party and provide in its agreement with such third party that these clauses are also included for the benefit of Vitalis, which may rely on them in legal proceedings in case of violation thereof by the third party. 5. The Buyer shall not employ subcontractors for the execution of any of its rights and obligations under these General Terms and Conditions of Sale without prior written consent of Vitalis. Such consent will normally be given by Vitalis upon prior written request from Buyer for the cultivation of Plant Material by a third party for the sole benefit of Buyer, subject to any conditions that Vitalis may require the Buyer to include in its agreement with such third party. 6. All illustrations, catalogues, documents and statements provided by or on behalf of Vitalis about quality, composition, weight, measurement, treatment in the broadest sense, applications and properties of the Products are based as closely as possible on Vitalis’s test results and practical experience, however without any guarantee, representation or warranty regarding purpose or performance. 7. The Buyer acknowledges that any information provided by Vitalis in relation to the quality (such as viability, germination, mechanical or genetic purity, seed health) and performance of the Products applies only to the tests done by Vitalis, to the specific seed sample used and to the specific conditions under which the tests were done. The Buyer agrees that the abovementioned information does not constitute an express or implied warranty. 8. The Buyer acknowledges that the results obtained by the Buyer with the Products depend on such factors as the place of cultivation, the conditions prior to and during cultivation, including but not limited to storage of Products, the climate, the soil and crop protection methods used by the Buyer. The Buyer shall be solely responsible for determining the suitability and appropriateness of the use of the Products in the different conditions and/or for the different purposes. 9. Vitalis provides product information to assist the Buyer and under no circumstances shall Vitalis be liable to the Buyer for results deviating from that information. Vitalis shall not be held liable for any information provided in relation to Resistances as defined in Schedule 1, Resistances to diseases indicated per Product, nor the Product Specifications as published on the Vitalis websites and pages. 10. Any and all warranties shall lapse and Vitalis shall not be liable for any Product that has been repacked, treated, conditioned and/or manipulated in any way by the Buyer or by Vitalis or a third party on the Buyer’s request. 11. The Buyer acknowledges that Products delivered by Vitalis are not fit for human or animal consumption. Article 12 - Liability and Indemnity 1. Vitalis shall in no event be liable to Buyer (or any third party affected under the Agreement) for any special, punitive, incidental or consequential damage, including but not limited to loss of profits, yield, goodwill, revenue, production, contracts or opportunity. 2. In any event and to the greatest extent permitted by law, Vitalis’s liability shall be limited to the amount (excluding VAT) invoiced in respect of the subject Products, and shall, at Vitalis’s election, be limited to either replacement of the Products for no further fee or an amount equal to the price of the Products. 3. Any potential claim for liability or compensation shall expire in the event that no such claim has been brought forth within 12 months of the delivery of the products. 4. The Buyer hereby explicitly understands and agrees to this limitation of Vitalis’s liability. 5. The Buyer shall indemnify, hold harmless and defend Vitalis and its affiliates (current and former), directors and employees against any and all third-party claims, actions, proceedings, and suits and related liabilities, damages, settlements, penalties, fines, costs and expenses (including, without limitation reasonable attorney fees) incurred by Vitalis arising out of or relating to Buyer’s violation or breach of any term of the Agreement, use or misuse of the Products, and/ or the fault, negligence or wilful intent of Buyer. Article 13 - Intellectual Property Rights 1. The Buyer agrees and acknowledges that, subject to the license provided under Article 11, paragraph 1, the exclusive right, title to and interest in all Intellectual Property Rights on the Products, Plant Material or any mutations, varieties or (biological) material obtained therefrom or included therein, including but not limited to genetics, traits, technology and/ or all its (phenotypical) characteristics, as well as in the Vitalis trademarks shall at all times be and remain absolutely vested in Vitalis or in any of its affiliates. 2. If and to the extent that the Buyer under the applicable law could establish any Intellectual Property Right in the Products, Plant Material or any mutations, varieties or (biological) material obtained therefrom or included therein, including but not limited to genetics, traits, technology and/or all its (phenotypical) characteristics, the Buyer agrees that the Buyer will not do so but rather transfer without undue delay such Intellectual Property Rights to Vitalis, which accepts such transfer. The Buyer hereby authorizes Vitalis to register and otherwise effect or complete such transfer under the applicable law and shall at Vitalis’s request assist in and carry out all actions deemed necessary by Vitalis to register, effect and complete such transfer. 3. The Buyer agrees neither to use nor register any trademark, trade name, company name, domain name, symbols or variety designation which is identical or confusingly similar to the trademarks, trade name, company name, domain name, or symbols or variety designation owned by Vitalis or any of its affiliate. 4. The Buyer may not use Vitalis’s trademarks, trade name and/or trade dress for any purpose unless otherwise approved in writing by Vitalis. 5. In the event that the Buyer finds, observes or discovers a derived variety, including but not limited to any mutation in the production and cultivation of the Plant Material, the Buyer shall immediately notify Vitalis thereof by registered letter. 6. At the written request of Vitalis, the Buyer shall immediately provide Vitalis with sufficient material from the derived variety (e.g. mutant), for testing purposes. 7. In the case of a derived variety (e.g. mutant) Buyer shall require the prior authorization of Vitalis for the following acts in respect of constituents of the mutation or harvested material of the mutation: (a) production or reproduction, (b) conditioning for the purpose of propagation, (c) offering for sale, (d) selling or other marketing, (e) importing to and/or exporting; (f) stocking for any of the purposes mentioned above. 8. New mutations derived from the mutations shall also be regarded as a derived variety of the (protected) varieties of Vitalis and paragraphs 5 to 7 of this Article 13 shall apply accordingly. 9. The Buyer agrees to allow and fully cooperate with any inspection by Vitalis for the purpose to verify any possible infringement of Vitalis’s rights or violation of the Agreement. The Buyer shall allow Vitalis or a person or company appointed by Vitalis to have direct access to Buyer’s premises including, but not limited to, its greenhouses, administrative and farming activities. The term ‘activities’ shall be understood to include activities carried out by third parties on behalf of the Buyer. 10. The Buyer shall fully cooperate with Vitalis to defend its rights against infringement. Article 14 Default, Suspension and Termination of the Agreement 1. In the event that a Party fails to perform any of its obligations under the Agreement and such default continues for a period of thirty (30) days after written notice to the defaulting Party specifying the default, the other Party shall be authorized to suspend any further performance of the Agreement or to terminate it out of court by a registered letter, without prejudice to any of its other rights under the Agreement, including but not limited to the right to claim from the Buyer compensation of all its damage and costs resulting from such default. 2. If the Buyer is liquidated, files for bankruptcy or is granted suspension of payments, makes a general assignment of its assets for the benefit of its creditors, becomes subject to receivership or is dissolved, all its payment obligations shall be immediately due and Vitalis shall be authorized to suspend any further performance of the Agreement or to terminate it, without prejudice to its right to claim compensation from the Buyer of all its damage and costs resulting therefrom. 3. If any of the events mentioned in article 14.2 occurs, the Buyer shall immediately inform Vitalis. The Buyer hereby grants Vitalis the right and/or has the obligation to execute, file or record such documents and to take any such actions, necessary to effectuate, enforce or implement the Agreement, and in particular to guarantee by preference the payment obligations. Article 15 – Final Provisions 1. These General Terms and Conditions of Sale replace earlier versions thereof and apply to all Agreements concluded after the date on which they have been published on Vitalis’s website under www.biovitalis.eu. 2. The Buyer shall not assign its rights and obligations under the Agreement to third parties without Vitalis’s prior written consent. 3. The Buyer agrees that Vitalis shall be permitted at all times to assign its rights and obligations under the Agreement to third parties. 4. The Agreement may only be amended by means of a written document signed by both Parties. Article 16 - Applicable Law Each Party irrevocably agrees that the Agreement, and any dispute or claim howsoever arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with the law of The Netherlands. The applicability of the Vienna Sales Convention is expressly excluded. Article 17 - Resolution of Disputes 1. In case of a dispute howsoever arising out of or in connection with the General Terms and Conditions of Sale and/or the Agreement, the Parties shall, if the dispute cannot be resolved amicably, first refer the dispute to proceedings under the ICC Mediation Rules. If the dispute has not been settled pursuant to the said Rules within 45 days following the filing of a Request for Mediation or within such other period as the parties may agree in writing, such dispute shall thereafter be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules of Arbitration. 2. The place of mediation and of arbitration shall be Amsterdam, The Netherlands. 3. Vitalis shall however be entitled to summon the Buyer at any time to appear before the competent court in the district in which the Buyer has its registered office. 4. In the event that court proceedings arise that are ancillary to ICC Mediation and/or ICC Arbitration the courts of The Netherlands shall have exclusive jurisdiction to settle any dispute or claim or issue arising out of or in connection with the Agreement or connected legal proceedings. Schedule 1 - Resistance 1. - Terminology and definitions a. ‘Immunity’ means not subject to attack or infection by a specified pest or pathogen. b. ‘Resistance’ is 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 of 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 highly resistant varieties. Intermediately 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. c. ‘Susceptibility’ is the inability of a plant variety to restrict the growth and development of a specified pest or pathogen. 2. - Information per variety Resistances in varieties of our crops will be coded (see coding list at www.biovitalis.eu), unless indicated otherwise. In case a variety is resistant to more than one pathogen, the individual resistance codes will be separated by the symbol ‘/ ‘. If in a resistance code of a certain variety reference is made to certain strains for which the resistance is claimed this means that no resistance is claimed to other strains of the same pathogen. If, in a resistance code, no reference is made to strains of the pathogen for which the resistance is claimed, resistance is claimed only to certain not further specified isolates and we hereby disclaim any (implied) warranty that the variety will not be infected by the said pathogen.
Resistances Scientific name English name Code Scientific name English name Code Lettuce Viruses Insects Lettuce mosaic virus Lettuce mosaic LMV Macrosiphum euphorbiae Potato aphid Me Fungi Nasonovia ribisnigri Lettuce leaf aphid Nr Bremia lactucae Downy mildew Bl Pemphigus bursarius Lettuce root aphid Pb Sphingomonas suberifaciens (ex Rhizomonas suberifaciens) Corky root Ss Spinach Fungi Perenospora effusa f.sp. spinaciae Downy mildew Pe Pepper Viruses Bacteria Chili veinal mosaic virus Chili veinal mosaic ChiVMV Ralstonia solanacearum Bacterial wilt Rs Cucumber mosaic virus Cucumber mosaic CMV Fungi Pepper mottle virus Pepper mottle PepMoV Fusarium oxysporum f.sp. capsici Fusarium wilt Foc Pepper yellow mosaic virus Pepper yellow mosaic PepYMV Phytophthora capsici Buckeye fruit and root rot Pc Potato Y virus Potato Y PVY Leveillula taurica (anamorph: Oidiopsis sicula) Leveillula taurica Lt Tobacco etch virus Tobacco etch TEV Nematode Tomato spotted wilt virus Tomato spotted wilt TSWV Meloidogyne incognita Root-knot Mi Tobamovirus group Meloidogyne arenaria Root-knot Ma Pepper mild mottle virus, Tobacco mild green mosaic virus, Tobacco mosaic virus, Tomato Tm:0-3 Meloidogyne javanica Root-knot Mj mosaic virus Bacteria Xanthomonas campestris pv. vesicatoria Bacterial spot Xcv Tomato Viruses Fungi Cucumber mosaic virus Cucumber mosaic CMV Fusarium oxysporum f.sp. lycopersici Fusarium wilt Fol Pepino mosaic virus Pepino mosaic virus PepMV Fusarium oxysporum f.sp. radicis-lycopersici Fusarium crown and root rot For Tobacco mosaic virus Tobacco mosaic TMV Leveillula taurica (anamorph: Oidiopsis sicula) Powdery mildew Lt Tomato spotted wilt virus Tomato spotted wilt TSWV Oidium neolycopersici (ex Oidium lycopersicum) Powdery mildew On (ex Ol) Tomato mosaic virus Tomato mosaic ToMV Verticillium albo-atrum Verticillium wilt Va Tomato yellow leaf curl virus Tomato yellow leaf curl TYLCV Verticillium dahliae Verticillium wilt Vd Bacteria Nematode Clavibacter michiganensis subsp. michiganensis Bacterial cancer Cmm Meloidogyne arenaria Root-knot Ma Xanthomonas vesicatoria (Xanthomonas campestris pv. vesicatoria) Bacterial spot Xcv Meloidogyne incognita Root-knot Mi Ralstonia solanacearum Bacterial wilt Rs Meloidogyne javanica Root-knot Mj Fungi Abiotic Stress Fulvia fulva (ex Cladosporium fulvum) Leaf mold Ff (ex Cf) Silvering Si Melon Viruses Fungi Melon necrotic spot virus Melon necrotic spot MNSV Podosphaeria xanthii (ex Sphaerotheca fuliginea) Powdery mildew Px (ex Sf) Fusarium oxysporum f.sp. melonis Fusarium wilt Fom Golovinomyces cichoracearum (ex. Erysiphe cichoracearum) Powdery mildew Gc Cucumber Viruses Bacterial Beet pseudo yellowing virus Beet pseudo yellowing virus BPYV Pseudomonas syringae pv. lachrymans Angular leaf spot Psl Cucumber green mottle mosaic virus Cucumber green mottle mosaic CGMMV Fungi Cucumber mosaic virus Cucumber mosaic CMV Colletotrichum orbiculare Anthracnose Co Cucumber vein yellowing virus Cucumber vein yellowing CVYV Corynespora cassiicola Corynespora blight and target spot Cca Cucurbit yellow stunting disorder virus Cucumber yellowing stunting disorder CYSDV Fusarium oxysporum f.sp. cucumerinum Fusarium wilt Foc Papaya ringspot virus Papaya ringspot PRSV Fusarium oxysporum f.sp. radicis-cucumerinum Fusarium crown and root rot For Watermelon mosaic virus Watermelon mosaic WMV Podosphaeria xanthii (ex Sphaerotheca fuliginea) Powdery mildew Px (ex Sf) Zucchini yellow mosaic virus Zucchini yellows ZYMV Pseudoperonospora cubensis Downy mildew Pcu Squash / Courgette Viruses Fungi Cucumber green mottle mosaic virus Cucumber green mottle mosaic CGMMV Podosphaeria xanthii (ex Sphaerotheca fuliginea) Powdery mildew Px (ex Sf) Papaya ringspot virus Papaya ringspot PRSV Fusarium oxysporum f.sp. cucumerinum Fusarium wilt Foc Squash mosaic virus Squash mosaic SqMV Fusarium oxysporum f.sp. lagenariae Fusarium wilt Fol Zucchini yellow mosaic virus Zucchini yellows ZYMV Fusarium oxysporum f.sp. melonis Fusarium wilt Fom Watermelon mosaic virus Watermelon mosaic WMV Cucumber mosaic virus Cucumber mosaic CMV Pumpkin Viruses Fungi Zucchini yellow mosaic virus Zucchini yellows ZYMV Podosphaeria xanthii (ex Sphaerotheca fuliginea) Powdery mildew Px (ex Sf) Cucumber mosaic virus Cucumber mosaic CMV Watermelon mosaic virus Watermelon mosaic WMV Papaya ringspot virus Papaya ringspot PRSV