Nunhems USA | Terms and Conditions of Sales

Terms and conditions are effective August 11, 2008, including the sections entitled Limitation of Warranty and Liability, and Limited License Agreement. Prices, terms and conditions are subject to change or withdrawal without notice. Nunhems USA, Inc. (hereinafter referred to as Nunhems) is not obligated to honor prices based on this price list due to misprints or inadvertent errors herein. Unless otherwise authorized by Nunhems in writing, this price list applies for shipments made between August 11, 2008 and March 31, 2009.

This price list is for sales to Nunhems authorized brand dealers and, unless otherwise authorized in writing by Nunhems, is the basis for actual prices paid by such dealers. Such dealers may also be referred to as Buyer(s) or Purchaser(s) throughout the remainder of this document. If these terms should conflict with a Brand Dealer Agreement between Nunhems and dealer, the Brand Dealer Agreement shall prevail.

Any terms on a purchase order or other document delivered to Nunhems by a Buyer in connection with a sale based on this price list shall have no force or effect unless specifically accepted in writing by Nunhems. Nunhems has the right to stop shipments immediately to any Buyer who does not comply with these terms and conditions.

All seed may be subject to Certification of Plant Variety Protection or to a claim of Breeders Rights under Chapter 57, Title 7, United States Code. Nunhems must be notified and royalties paid to Nunhems if a crop grown from such seed is harvested for seed purposes.

Products on this list are intended for shipment to North America (U.S.A., Canada and Mexico) only. Such products may not be resold, directly or through a third party, outside North America or to any area in which the reselling party is not an authorized dealer without the written authorization of Nunhems. Buyer is cautioned that export or re-export must be in accordance with United States Export Administration regulations. Diversion contrary to United States law is prohibited.

Sales Orders

All sales orders received are subject to written confirmation of acceptance by Nunhems. Nunhems may confirm quantities less than ordered by Buyer dependent upon availability and reasonableness. Nunhems retains, at its sole discretion, the right to determine reasonableness of order quantities of each variety. Confirmed Orders are subject to allocation in accordance with Nunhems’ policies for insufficient seed crops.

Early Order Bookings

Orders for seeds received at Nunhems by May 31, 2008 may qualify for Early Order Booking (EOB) pricing in accordance with the applicable Brand Dealer Agreement and associated pricing information. EOB pricing is not available for all products and services.

Low Value Shipments

Delivery, Insurance and Taxes:

All shipments are at Buyer’s risk and expense Free Carrier (FCA) shipping point unless otherwise agreed to in writing by Nunhems. Nunhems disclaims all liability for any carrier delivery delays regardless of whether carrier is selected by Buyer or Nunhems USA.

Additional insurance at Buyer’s expense may be available for shipments via ocean vessel or international aircraft. Contact Nunhems’ Customer Service Department for further information.

In addition to the purchase price, Buyer shall pay Nunhems the amount of all taxes, excises or other charges (except taxes on or measured by net income) that the seller may be required to pay to any Government (national, state or local) with respect to the production, sale or transportation of any product delivered hereunder, except where the law otherwise provides.

Order Adjustments or Cancellations:

Quantities of each variety contained in confirmed Sales Orders are contractual obligations of the Buyer to be shipped and invoiced to Buyer not later than the Ship Date shown on the confirmed Sales Order. However, Buyer may substitute products up to an aggregate of 10% of the value of total confirmed orders eligible for EOB pricing on a dollar for dollar basis. Buyer is disqualified for EOB pricing of such substitute items if the original variety is available. Cancellation or reduction of any confirmed quantities requires Nunhems’ agreement in writing. Such cancellation or reduction can disqualify Buyer from EOB pricing privileges for other seed varieties.

If Buyer fails to accept 100% delivery of a confirmed order for an available variety or approved substitution during this price list period, Buyer’s subsequent orders of the same variety are subject to non-acceptance by Nunhems or reduced allocations of short crops.

Return Limitations:

Products purchased are not returnable. ALL SALES ARE FINAL. For quality or warranty related issues, returns must be authorized in advance by Nunhems. Product return requests shall be made in writing to Nunhems Customer Service Department. Authorization must be confirmed to Buyer in writing before return shipment or delivery of products to Nunhems facility. Excess freight or other expenses incurred due to shipment in advance of authorization or for shipment to an address not authorized by Nunhems will be for account of Buyer.

If return is approved, Nunhems’ Return Authorization Number will be provided to Buyer. The Authorization Number must be shown on shipping labels to ensure acceptance of the Return by Nunhems. Return freight charges and costs are at Buyer’s expense unless Nunhems agrees in writing to pay for the costs of the return.

Credit amounts for authorized returns are subject to adjustment based on seed testing results after receipt. All returns are subject to a 15% restocking charge. This section is not applicable to end user returns to Nunhems authorized dealers due to non-acceptance of Limitation of Warranty and Liability terms found herein, on Nunhems brand containers, and at www.nunhemsusa.com.

Litigating Parties

Products on this list are not for sale to any person or entity that has initiated a seed arbitration/conciliation/mediation proceeding or litigation that is currently pending against Nunhems or a Nunhems authorized dealer or sub-dealer based upon a Nunhems product, hereinafter called “Litigating Party.” Accordingly, Buyer agrees that products purchased from this list may not knowingly be sold, given, transferred or in any way conveyed to any Litigating Party. A list of Litigating Parties is available by contacting Nunhems Attn: Customer Service Department, 1200 Anderson Corner Road, Parma, ID 83660, telephone (800) 733-9505 or (208) 674-4100. Buyer agrees to keep the contents of the list of Litigating Parties confidential and shall not share the list with anyone.

Payment Terms:

For Buyers that have established credit privileges with Nunhems and are in good credit standing, payment terms for products and services contained in this price list are “Net Invoice due 60 days from Invoice date.” For payments received at Nunhems within 15 days of invoice date, a 2% early payment discount will be allowed for the value of seeds only. No early payment discounts can be allowed for the value of freight or other services or products advanced and invoiced for Buyer’s convenience. Nunhems shall not be responsible for delay in receipt of invoices by Buyers due to postal service transit times or otherwise.

Orders or shipment requests from Buyers, who, in Nunhems’ judgment are not in good credit standing, are subject to non-acceptance or delay until Buyer has made payments required by Nunhems or made arrangements otherwise satisfactory to Nunhems for Buyer to reestablish credit privileges.

For any Buyer who has not established credit privileges with Nunhems, payment for products, freight and services must be made prior to shipment.

All past due amounts and amounts paid late are subject to penalty interest at a rate up to 1.5% per month (18% per annum) or the highest interest rate permitted by law, whichever is less. Penalty Interest assessed and invoiced is due and payable when interest invoices are issued. Failure to pay penalty interest can jeopardize a Buyer’s good credit standing.

All payments to Nunhems must be in U.S. Dollars unless otherwise agreed in writing by Nunhems.

Arbitration

Any controversy or claim arising out of or related to this Agreement, or the breach thereof, or any other business relationship between the parties, shall be resolved by arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules, and judgment on any award rendered by the arbitration panel may be entered in any court having jurisdiction thereof. The arbitration shall take place in Ada County, Idaho. The arbitration panel shall have the power to apportion between the parties, as part of a final award, administrative fees of the American Arbitration Association, the compensation of the arbitration panel and any other expenses incurred at the direct request of the panel. The panel shall have the right to award to the party determined to be the prevailing party an amount equal to reasonable attorneys’ fees which shall then be due from the losing party. Any award made by the arbitration panel shall be fully consistent with the terms of this AGREEMENT and the panel may not grant any relief of remedy that is excluded or limited by any provision of this AGREEMENT. NUNHEMS AND BUYER ACKNOWLEDGE THAT THEY ARE WAIVING THEIR RIGHT TO TRIAL BY JURY. For international sales between parties of different countries, the United Nations convention on Contracts for the International Sale of Goods shall not apply.

Packaging

Prices include Standard Packaging as described in each seed species section herein. Seeds are packaged under controlled moisture conditions. Non-Standard packaging may be available at an additional charge.

Seed Treatment and Non-treated Seed Risks
Standard Treatment is as described in each seed species section herein. All treatments provided shall only be applied at manufacturer’s labeled recommended rate. If Buyer requests non-treated seed, THE BUYER ACCEPTS RESPONSIBILITY FOR TREATING THE SEED PRIOR TO RESALE OR INFORMING BUYER’S CUSTOMERS OF THE DISEASE RISKS OF USING NON-TREATED SEED. NUNHEMS DISCLAIMS ALL LIABILITY AND RESPONSIBILITY FOR CROP DISEASE RESULTING FROM THE USE OF NON-TREATED SEED.

Customized Treatment and other Non-Standard seed enhancement services may be available to Buyer at an additional charge. If provided, Customized Treatment and other Non-Standard seed enhancement services are subject to the following conditions: Buyer may be obligated to purchase up to 105% of the ordered quantity for each variety and Customized Treatment specification requested.

IMPORTANT: If you, your employees or anyone acting on your behalf opens a container of NUNHEMS USA seed, you acknowledge that you have been given notice of this Limited License Agreement and that you agree to its terms. You may not buy or use NUNHEMS USA seeds unless you so agree. If you are unwilling to agree with any of the terms or conditions of this Limited License Agreement, return the seeds to a NUNHEMS USA authorized dealer within 10 days of purchase or transfer, unopened, and NUNHEMS USA will refund the purchase price, if any.

Watermelon and Melon Seed/Plant Sales - Buyer’s Duty to Notify
PRIOR to any Authorized Sale of Nunhems Watermelon and/or Melon seeds/plants, Buyer agrees to notify any person receiving Nunhems Watermelon and/or Melon seeds/plants of the additional terms and conditions of sale relating to Watermelon and Melon seeds/plants by requiring such person to sign an Agreement of Additional Terms and Conditions of Sale in the form provided by Nunhems. Buyer agrees to obtain a copy of the signed Agreement of Additional Terms and Conditions of Sale PRIOR to purchase by and/or delivery of Nunhems Watermelon and/or Melon seeds/plants to any person. Executed Agreements of Additional Terms and Conditions of Sale shall be sent to Nunhems via U.S. mail or nationally recognized courier service at the address below no later than ten (10) working days after delivery or shipment of seeds/plants. Blank copies of the Agreement of Additional Terms and Conditions of Sale can be obtained upon request from Nunhems’ Customer Service Department, 1200 Anderson Corner Road, Parma, Idaho 83660 USA, Phone: 800-733-9505 or 208-674-4100.