In this Terms and Conditions of Sale:
The Buyer means the person, firm, company or other organization who or which has ordered Products (defined herein below) from the Seller (defined herein below).The Seller means either (i) MAG Seeds Limited, a Thai Private Limited Company incorporated under the Civil and Commercial Thai Code and registered with the Department of Business Development, Ministry of Commerce of Thailand under No. 0405564002641, (“Mag Seeds”), or (ii) any other Mag Seeds’ subsidiary in Thailand or abroad that is directly authorized from Mag Seeds to sell the Products.
The Product means any agriculture product sold by the Seller whether produced by or supplied to the Seller by any suppliers.
The Supplier means any local or international person, whether juristic or natural, who supplies the Seller, whether exclusively or not, with any agriculture products.
The Purchase Request means any request delivered to the Seller by anyway from any Buyer which stipulates a specific product type, quantity and delivery time.
The Commercial Transaction means any transaction the Seller enters into with any Buyer in regard to the sale of a product.
The Party/ies mean(s) the contracting parties of a Contract.
The Contract means the final executed contract for the sale of Products between the Seller and the Buyer as may be further evidenced by the Seller’s final written offer, quotation, order acknowledgement or the transaction’s execution by the Seller, and no prior proposals, statements, representations or conditions will be binding on either Party.
The Publicized Information means any information provided by the Seller, any Supplier or any other person whether imprinted on the Product’s package, displayed on any website or publicized by any mean of publication.
The Seller’s Headquarter means Mag Seeds’ main office located in building No. 184, Moo 7, Nong Kung Sub-district, Nam Phong District, Khon Kaen Province, 40140.
These Terms and Conditions of Sale shall be incorporated into the Contract and shall apply to the exclusion of any conditions of the Buyer. These Terms and Conditions of Sale may not be varied or waived except with the express written agreement of the Seller. The failure of the Seller to enforce its rights under the Contract at any time, for any period of time, shall not be construed as a waiver of any such rights.
Any Purchase Request received, by any mean, by the Seller of any Product is considered to be an offer from the Buyer who submitted such request. The Seller shall have the right to accept or refuse such offer. The Seller’s acceptance of such offer shall be expressed in written or impliedly by the Seller’s proceeding in delivering the product in accordance with these Terms and Conditions of Sale, which shall apply on such transaction.
Once the Seller’s approval is made, the Contract is formed and the Purchase Request shall not be rescheduled or cancelled without the Seller’s prior written consent.
The Seller have the right to solely refuse any offer expressly or impliedly.
3-PRICES AND QUOTATIONS
The price of the Products will be the Seller’s quoted price, inclusive of any duties, but exclusive of any taxes. All quotations issued by the Seller for the supply of Products shall remain open for acceptance for the period stated in the quotation or, if none is stated, for seven (7) days.
The Seller shall charge the Buyer for the full cost of Shipping as stated in Article 8 of these Terms and Conditions of Sale.
Unless otherwise agreed in writing, the Buyer shall make payment to the Seller in full, without any set-off:
no later than thirty (30) days from the date of invoice, in the currency invoiced; and
solely via electronic funds transfer originating from or cheque drawn on Buyer’s account held in the country of Buyer’s principal place of business.
In the event of late payment, the Seller reserves the right to the following:
suspend deliveries and/or cancel any of its outstanding obligations;
impose delay penalty of half percentage (0.5%) of the invoice’s value per month without being required to take any procedure or prove the actual incurred damages; and
in sale with installments, the payment of all installments shall be immediately due without further notice in case of the Buyer’s delay of paying two (2) consecutive installments, without the need of any notice, warning, issuance of a judicial ruling, or any other judicial action. Without any prejudice to what is stipulated in paragraph (ii) of this Article.
The Seller does not perform technical examination on any Product purchased from Suppliers.
Product’s examination is limited to the procedures performed by the local and International governmental competent authorities, which certify that the Product is in compliance with all the legal standards prescribed in the applicable legislations.
The Product’s standard package shall be used in any Commercial Transaction.
The Seller’s written agreement is required for any modification to the Product’s standard package.
The Seller shall have the right solely at any time to modify any Product’s package.
The Product’s delivery shall be made to the location agreed upon between the Seller and the Buyer, the delivery location if not determined shall be the Seller’s determined location.
Any Product’s delivery date stipulated in any Contract shall be approximate. The Seller shall deliver the products in a reasonable time in accordance with the sowing or planting season.
In case of the Seller’s delay in delivering the Product, the Buyer shall notify the Seller to agree on a final date of delivery. The Seller shall use all reasonable endeavors to avoid delay in delivery on the notified delivery dates. Failure to deliver by the specified date will not be a sufficient cause for cancellation.
In all cases, the Seller shall not be liable for any loss or damage that may occur from any delay of Product delivery.
Partial deliveries and related invoicing shall be permitted. If the Buyer fails to accept delivery of the Products within a reasonable period after receiving notice from the Seller that they (or any part of these) are ready for delivery, or if delivery is delayed for reasons attributable to the Buyer, the Seller may dispose of or store the Products at the Buyer’s risk and expense.
Where Products are supplied by the Seller in returnable containers, these containers must be returned at the Buyer’s expense and in good condition, if requested by the Seller. Title to these containers shall remain with the Seller at all times, but they shall be held at the risk of the Buyer until returned to the Seller in good condition. Failure by the Buyer to comply with the above provision shall entitle the Seller to invoice the Buyer for the full replacement value of the containers.
The Buyer shall provide the Seller with a detailed shipping instructions in which the Seller shall try to follow as far as possible; otherwise, the Seller shall solely determine the shipping instructions. The Seller shall charge the Buyer for the full cost of Shipping.
9-COMPLAINS AND RETURNS
The Buyer shall notice the Seller in writing of any defects related to the scope of the Seller’s liability as stated in Sub-Articles 9.1 and 9.2 of these Terms and Conditions of Sale that he finds in the quality or quantity of the purchased Product, within seven (7) days commencing from the Product delivery date.
The Notice shall stipulate the quantity and planting conditions of the unsprouted seeds. A sample of the unsprouted seeds shall be sent with the complaint. The original invoice for the allegedly defected products shall be attached to the Notice.
The Seller shall have the right to perform plant analysis on the unsprouted seeds received as samples and on the planted seeds on the land of the Buyer, by any specialized local or international lab to determine the seeds are conforming genetically with the sold seeds and whether the seeds are defected in regard to its quality or sprouting ability. The results of this analysis shall be final and forceable among both the Seller and the Buyer. The Seller shall not be liable if the analysis resulted in a genetic distinction between the sold seeds and the allegedly defected seeds.
In case the Seller assured the defects, the Seller shall have the right to decide whether to return the defect Product or replace such Product with similar Product.
The lapse of the aforementioned seven (7) days without the Seller being noticed of such defect as stipulated in Sub-Article 8.1 of these Terms and Conditions of Sale shall result of the Seller’s discharge of any liability arises from such defects.
10-LIMITATION OF LIABILITY
Each one (1) seed sold by the Seller is only purposed to produce one (1) plant of the same sold type.
The Seller shall not be responsible for the supervision of the plantation process until harvesting. Accordingly, the Seller’s liability towards the Product shall end once the seed is sprouted, as the plantation process till its harvest requires natural resources, additional supplies and taking special care that the Seller is not specialized with. Therefore, the Seller does not guarantee the Product’s performance after being sprouted against any latent defects, and the Buyer agrees to that.
The Seller shall not be liable for any claim that is not made in accordance with what stipulated in Article No. eight (8) of these Articles and Conditions of Sale.
In case of a claim in accordance with Article No. eight (8) of these Terms and Conditions of Sale, the Seller shall not be liable to compensate any damages that exceeds the Product’s purchase price as stipulated in its invoice.
The Seller shall not be liable for any defect happens to any sold seed due to the Buyer’s or third party’s act/attempt of performing seed anatomy, reproduction, treatment, repacking and/or merging with other plants.
In case of resale of the Product by the Buyer, the Buyer shall notify any customer of these Terms and Conditions of Sale, otherwise the Buyer shall be completely liable for alleged defect or claim of any Product without any liability upon the Seller.
The Seller shall be entitled in the former Sub-Article to claim any incurred expenses from the Buyer.
The Seller’s Products of seeds shall be planted within one (1) year from the date of examination by the competent local authorities, provided that the packages are well-preserved in a suitable place without being exposed to direct sunlight or humidity, in suitable temperature degree. The Seller will not be liable for any change in the seed’s quality if such change is due to the lapse of the aforementioned 1 (one) year or the noncompliance with the aforementioned preservation conditions.
12-RULES OF INFORMATION
Any publicized information issued from any entity in regard to the Product’s quality is only based on scientific tests performed under controlled conditions, where the Product seeds were cultivated in places of a standard quality, with the latest agriculture methods that grant the Product the most suitable medium for development. This may result to a distinction between the Product’s publicized information and the cultivated Product. The Seller will not be liable for such distinction.
Any Product’s description in any Publicized Information means the following:
immune means that the variety shall not be affected by a certain disease;
resistant means that the variety usually can prevent the development of a certain disease;
tolerant means that the variety can withstand a certain disease but with some effects on the variety’s development; and
vulnerable means that the variety will not resist a certain disease.
13-INTELLECTUAL PROPERT RIGHTS
All intellectual property rights in the Products shall at all times remain vested in the Seller or its licensors.
In the event that the Buyer becomes insolvent or applies for bankruptcy or, being a company, goes into liquidation (other than for the purposes of reconstruction or amalgamation), the Seller shall be entitled immediately to terminate the Contract without notice and without prejudice to any other rights of the Seller hereunder.
15-ASSIGNMENT – SUBCONTRACTING
The Seller may assign or novate its rights and obligations under the Contract, in whole or in part, to any of its affiliates or may assign any of its accounts receivable under this Contract to any third-party without Buyer’s consent. Buyer agrees to execute any documents that may be necessary to complete the Seller’s assignment or novation.
The Seller may subcontract portions of the work, so long as the Seller remains responsible for it.
The delegation or assignment by Buyer of any or all of its rights or obligations under the Contract without the Seller’s prior written consent (which consent shall not be unreasonably withheld) shall be void.
A Party shall not be liable in respect of the non-performance of any of its obligations to the extent such performance is prevented by any circumstances beyond its reasonable control including but not limited to, pandemic, strikes, lock outs or labor disputes of any kind (whether relating to its own employees or others), fire, flood, explosion, natural catastrophe, military operations, blockade, sabotage, revolution, riot, civil commotion, war or civil war, acts or threats of terrorism, plant breakdown, computer or other equipment failure and inability to obtain equipment.
If an event of force majeure exceeds one (1) month a Party may cancel the Contract without liability.
The Parties acknowledge that the COVID-19 epidemic and government actions in response to it have affected and will continue to affect the Seller’s ability to deliver Products (the “COVID-19 Impact”). In the event that the COVID-19 Impact affects the Seller’s ability to deliver on time or at the quoted price, the Seller shall be entitled to an equitable adjustment in schedule and price as appropriate, subject to the Seller’s obligation to work in good faith with Buyer to mitigate the impact on schedule and/or cost.
17-SETTLEMENT OF DISPUTES
Any dispute, controversy or claim arising out of or relating to any Commercial Transaction under these Terms and Conditions of Sale or under any Contract in which the Seller is a party to, shall be settled by arbitration by Cairo Regional Center forInternational Commercial Arbitration “CRCICA” located in Cairo, the Arab Republic of Egypt, in accordance with CRCICA arbitration rules.
The number of arbitrators shall be three and the language to be used in the arbitral proceedings shall be English.
Any Contract shall be governed by and construed in accordance with the laws of the Arab Republic of Egypt.