Terms and Conditions

TERMS AND CONDITIONS OF SALE

All orders place for products furnished by Specialty Seeds, Inc., a Mississippi corporation, (“Specialty”) to the purchasers thereof (the “Buyer”) are subject to the terms and conditions set forth herein (collectively, these “Terms”) and the Order Form issued by Specialty (the “Order Form” and together with these Terms, the “Contract”). If any provision in the Order Form is inconsistent with these Terms, the provision of these Terms shall govern. No additional or different terms or conditions or any modifications, changes or amendments to the Contract shall be binding upon Specialty unless specifically agreed to in writing by an authorized representative of Specialty. Specialty hereby objects to, and rejects, any additional or different terms already or hereafter proposed by Buyer, but not expressly set forth in the Contract, whether contained in any documentation or communication from Buyer or otherwise, including, without limitation, any terms set forth in any purchase order, acknowledgement, statement of terms and conditions or any other such document or communication. Specialty’s failure to further object to any of the provisions contained in any documentation of Buyer’s or any communication of any kind from Buyer shall not be deemed a waiver of the terms of the Contract or as an acceptance by Specialty of any deviation from the terms of the Contract. SPECIALTY’S ACCEPTANCE OF ANY OR ALL OF THE BUYER’S ORDERS FOR PRODUCTS OR SERVICES IS CONDITIONAL UPON BUYER’S ASSENT TO THE TERMS OF THE CONTRACT REGARDLESS OF ANY TERMS CONTAINED IN ANY OF BUYER’S COMMUNICATIONS OR DOCUMENTS.

Specialty agrees to sell non-exclusively to Buyer and grants Buyer a non-exclusive right to store, market, and sell the Products (as hereinafter defined) in the United States solely for planting in the United States. Buyer may use Specialty’s trademarks and brand names only in connection with identifying and marketing the Products, and will not export, sell, or assist in exporting any Products outside the United States, and will not challenge Specialty’s rights in the Products, the genetic material in the Products, or Specialty’s owned or licensed trademarks and brand names.
“Products” means all products, proprietary seeds and seed-related materials sold, supplied, licensed or otherwise later provided by Specialty, including, but not limited to, any varieties or germplasm, conventional genetic lines, Tara, Derry, Tyrone, Quail Haven Re-seeding Soybeans, Titan, Colossus, Chiwapa Millet, Goliath Soybeans, SSI30-06 Wheat, and FL12034 Oat. Such Products are or may be protected under the Plant Variety Protection Act, the Patent Act, and/or contract law and may be identified with Specialty’s trademarks and brand names.
Buyer acknowledges that Specialty is providing Buyer with proprietary Products developed through Specialty’s research and development and agrees to fully cooperate to protect the intellectual property rights Specialty may have in the Products. The Products shall remain Specialty’s exclusive property until the Products are sold by Buyer to a proper end user for planting. Any Products not sold as such must be returned to Specialty by Buyer without payment from Specialty. If Buyer becomes aware or suspects that Specialty’s intellectual property rights has been misappropriated or infringed upon, Buyer shall notify Specialty.
If applicable, Buyer shall keep and maintain complete record of all sales and transfers of the Products for at least three years from the date of each transaction, including, but not limited to, the names, addresses, dates, quantities, varieties and/or authorized disposals of any excess Products. Buyer agrees to make such records available for review and audit by Specialty and its authorized representatives.
Buyer shall store Products in a cool, dry environment sufficient to preserve the quality of the Product and their germination potential. Buyer shall unwrap and inspect all shipments upon delivery. Any carrier-related damage must be noted on the carrier’s documentation, photographed, and promptly provided to Specialty by Buyer. Specialty is not responsible for damage or loss caused during transit.
Buyer is prohibited from: using transformation techniques on Specialty germplasm; using mutagenesis, tissue culture, or molecular or cellular techniques on any seeds, plants, or plant parts of Specialty germplasm; making selections within the Specialty germplasm; making seed stock increases of Specialty germplasm; transferring proprietary seeds or resulting plants, plant parts or germplasm to any third-party for testing, brown-bagging, crossing, mutagenesis, tissue culture, or molecular manipulation; and conducting testing or publishing results of research on Specialty germplasm, or assisting or allowing others, without written consent of Specialty.
The relationship of Specialty and Buyer is that of independent contractors. If applicable, Buyer must have their own state seed dealer’s licenses or other applicable licenses and are responsible for any seed, tonnage, or sales tax. Nothing in the Contract will be construed to create a partnership, joint venture, or similar relationship, to give either party control over the other’s day-to-day activities, or authorizes either party to bind the other.
Any notice under the Contract must be in writing and will be deemed given when: (a) delivered personally; (b) sent by nationally recognized overnight courier (with written confirmation of delivery); or (c) mailed by certified or registered mail, return receipt requested, postage prepaid, in case of the Buyer to the address set forth in the Order Form and in case of Specialty, to the address listed on the Mississippi’s Secretary of State’s website (or to any other address a party designates by written notice). Notice by electronic transmission (e-mail) shall be sufficient, but only upon confirmation of receipt by the receiving party.
Specialty provides the Products “as-is” and disclaims all warranties, express or implied, including merchantability, fitness for a particular purpose, and non-infringement, except as expressly stated in the Contract. No warranty arises from course of dealing or trade usage.
Buyer will defend, indemnify, and hold harmless Specialty and its affiliates (and their officers, directors, employees, agents, and successors, assigns) from any claims, losses, damages, liabilities, and expenses (including reasonable attorneys’ fees) arising out of the Products, or Buyer’s negligence, willful misconduct, or breach of the Contract. Buyer may not settle any claim without Specialty’s prior written consent and will reimburse Specialty for reasonable attorneys’ fees and litigation expenses to enforce the Contract or any indemnity right.
If any one or more of the provisions contained in the Contract shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision of the Contract and the Contract shall be construed as if such invalid, illegal or unenforceable provision had never been contained therein.
The Parties agree that any dispute arising out of the Contract (other than for those causes of action expressly waived by the Contract) shall first be negotiated between the parties in good faith. If direct negotiations do not resolve the matter, then any party may demand in writing the dispute be submitted to non-binding mediation. After notice of demand, the party shall select a mediator who will render a recommended resolution to the dispute, and if a mediator cannot be agreed upon, one shall be selected by the American Arbitration Association (“AAA”). The parties shall share the cost of the mediator. If the dispute is not resolved within thirty days, then except for claims for temporary injunctive relief, any dispute arising out of or relating to the Contract shall be resolved by binding arbitration before a single arbitrator administered by the AAA. The arbitration shall take place in Sharkey County, Mississippi, and judgment on the award may be entered in any court of competent jurisdiction.
All matters arising out of or relating to the Contract is governed by and construed in accordance with the internal laws of the State of Mississippi (the “State”) without giving effect to any choice or conflict of law provision or rule (whether of the State or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State, and the partes agree to waive any right to a trial by jury.