2018 Terms and Conditions of Purchase
IMPORTANT NOTICE: PLEASE READ COMPLETELY. THE FOLLOWING TERMS AND CONDITIONS OF PURCHASE SHALL APPLY TO ALL PURCHASES OF NUTECH SEED PRODUCTS (“PRODUCT” or “SEED”) FROM PIONEER HI-BRED INTERNATIONAL INC. (“SELLER”) AS OF August 1, 2017, AND RUNNING THROUGH THE ENTIRE 2018 CROP SEASON (INCLUDING HARVEST). BY ENTERING INTO THIS PURCHASE TRANSACTION (“AGREEMENT”) WITH SELLER, YOU (“YOU” or “GROWER” or “PURCHASER”) ACKNOWLEDGE A CLEAR UNDERSTANDING OF, AND AGREE TO THE TERMS AND CONDITIONS OF, YOUR PURCHASE INCLUDING YOUR OBLIGATIONS, RESTRICTIONS AND RIGHTS OF USE AS STATED FULLY IN THESE TERMS AND CONDITIONS AND/OR AS INDICATED ON ANY BAG OR TAG LANGUAGE ACCOMPANYING THE PRODUCT, INCLUDING ANY AND ALL OF THE BAG AND TAG USE RESTRICTIONS, INVOICE RESTRICTIONS AND, WHEN APPLICABLE, SEED AND TECHNOLOGY USE AGREEMENTS (“TUA”) AND PRODUCT USE GUIDE. IF ANY PRODUCTS THAT YOU PURCHASE CONTAIN BT TECHNOLOGY (PLANT INCORPORATED PROTECTANTS), USING THE SEED CONSTITUTES AN AFFIRMATION OF YOUR CONTRACTUAL OBLIGATION TO COMPLY WITH THE INSECT RESISTANCE MANAGEMENT (IRM) REQUIREMENTS. IF YOUR PURCHASE INCLUDES SEEDS THAT CONTAIN ONE OR MORE BIOTECH TRAITS, DO NOT OPEN OR USE UNLESS YOU AGREE WITH THESE TERMS AND CONDITIONS (INCLUDING THOSE REQUIRING YOU TO ADHERE TO THE PRODUCT USE GUIDE) AND EXECUTE A TUA. IF YOU DO NOT AGREE WITH ANY OF THESE TERMS AND CONDITIONS, DO NOT OPEN THE PRODUCT AND RETURN ANY PRODUCT(S) WITHIN TEN (10) BUSINESS DAYS.
- AVAILABILITY: All ordered/invoiced Products and sub-Products are subject to availability at time of delivery.
- TERMS OF SALE: Terms of sale are cash payment due upon delivery of goods. Any amount outstanding shall accrue a finance charge at the rate of 1.5% per month (18% annually or the maximum allowed by your state law if less than 1.5%) until the outstanding balance has been paid in full. If You are an approved Deferred Payment Loan customer of PHI Financial Services, Inc. (PHI FS) under their Deferred Payment Program, then the terms of your agreement with PHI FS shall govern your payment terms and conditions. Except as noted above, Seller has a no return policy; however, Seller may, in its sole discretion, allow for a return of Product(s) in limited circumstances.
- USE RESTRICTIONS FOR SEED PRODUCTS: The Seeds, traits, and technology contained within, as well as the parental lines and progeny, are covered by intellectual property protection, which may include plant variety certificates, confidential information, trade secrets and patents which may include, but are not limited to, patented germplasm, transgenic traits, native traits, transformation technologies, methods of use and breeding methods. The purchase/bailment/transfer of these Seeds conveys no right under any intellectual property to use these Seeds for any purpose. A conditional right must first be obtained before these Seeds can be used in any way. A conditional right for a specific use, including planting for a single commercial crop, may be obtained via a valid, legally binding signature on a TUA. This Seed may only be offered for sale, transferred or distributed by a distributor or licensed representative. Contact Seller if you wish to discuss any other use of this material.
This Seed may also be protected under the laws of this or other countries. Export of this Seed is prohibited. Grower agrees that this transfer is directed to, and Seller intends to supply, only seed for production of a single commercial crop, and agrees not to save seed from that crop for planting for a second or subsequent year. Grower agrees that it is not acquiring any rights from Seller to use the Seed contained or any parental line that may be unintentionally contained herein (collectively, the “Materials” contained) for purposes other than production of forage, silage or grain for feeding or processing. Grower shall ensure that none of the Materials, or their progeny, will be used in breeding or research. Without limiting the generality of the foregoing, Grower shall ensure that none of the Materials, or their progeny, or the products produced therefrom shall be characterized using any molecular technique, including in the broadest possible sense: sequencing, analyzing molecular species, isolating molecular species, subjecting to molecular marker analysis (including but not limited to using PCR, hybridization or any other technique requiring the inquiry of a nucleic or amino acid, whether directly or indirectly), genotyping, DNA fingerprinting, and/or use of double-haploid technology.
Grower may not sell or transfer any of the Materials to any other party. Grower shall not cause the Materials to be delivered to, or used or analyzed by or for the benefit of, any third party. In the event of any threatened or actual breach of this Agreement, Grower shall (1) immediately notify Seller and, (2) at Grower’s sole cost and expense, take all necessary and useful steps to prevent and cure such breach.
- USE RESTRICTIONS AND LIMITED LICENSES FOR COMMERCIAL MICROBIAL PRODUCTS: The Cultures used in formulating Commercial Microbial Products are the exclusive property of Seller. Purchaser agrees to use such Commercial Microbial Product only in accordance with the Product label and not for other formulating, reproduction or applied genetic research purposes. This Commercial Microbial Product may be protected under one or more patents or under laws of other countries. All uses outside the U.S. are prohibited to the extent they result in infringement of U.S. or international patents.
If the bag or container label indicates this Product is protected under one or more U.S. or international patents, Purchaser agrees that it is granted a limited license thereunder only to use the Product for the production of ensiled feeding stuff.
- PRODUCT DESCRIPTION EXPRESS WARRANTY: Seller warrants that the Seed or other Products purchased from Seller conforms to the descriptions on the label within tolerances, if any, established by law.
- DISCLAIMER OF WARRANTY: TO THE EXTENT ALLOWABLE BY LAW, THE EXPRESS WARRANTY ABOVE EXCLUDES AND IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY AND OF FITNESS FOR A PARTICULAR PURPOSE WHICH ARE HEREBY EXPRESSLY DISCLAIMED. This warranty is contingent upon the proper use in the application for which the Seed or Products were intended and does not cover seed or products which have been modified in any manner (including, but not limited to, seed treatment of any kind not provided by Seller) or which have been subjected to improper storage, abuse, misuse, alteration, or neglect. SELLER DOES NOT MAKE ANY REPRESENTATIONS, WARRANTIES, OR RECOMMENDATIONS CONCERNING ANY PRODUCT(S) NOT COVERED BY THESE TERMS AND CONDITIONS INCLUDING BUT NOT LIMITED TO THOSE THAT ARE LABELED FOR USE ON <INSERT BRAND>PRODUCTS. SELLER SPECIFICALLY DISCLAIMS ALL RESPONSIBILITY FOR THE USE OF SUCH PRODUCT(S) WITH <INSERT BRAND>PRODUCTS. ALL QUESTIONS AND COMPLAINTS ARISING FROM THE USE OF SUCH PRODUCT(S) SHOULD BE DIRECTED TO THOSE COMPANIES. ANY REPRESENTATION OR WARRANTY REALTED TO ANY SELLER PESTICIDE PRODUCT IS LIMITED SOLELY TO ANY REPRESENTATIONS OR WARRANTES MADE AS PART OF THE SALE OF SUCH SELLER PESTICIDE PRODUCT.
- LIMITATION OF LIABILITY: In the event of any claim sought by the Purchaser from Seller in connection with the purchase or use of the Products, the remedy of Purchaser or any other person, (whether such loss results from breach of warranty, contract, tort, strict liability, or negligence) shall be limited solely and exclusively to the amount of the purchase price of the Products or replacement of the Products, at the election of Seller and its sales representatives, or its distributors or dealers. In no event, shall Seller and its sales representatives, or its distributors or dealers, or any of their affiliates be liable for any indirect, consequential or incidental, punitive, exemplary or multiplied damages sustained by Purchaser or any other person. Purchaser agrees not to assert any non-contractual claim arising under state law, arising out of or relating to the purchase of any Product. Purchaser, having the expertise and knowledge in the intended use of Products and any articles made therefrom, assumes all risk and liability resulting from use of the Products delivered hereunder, whether used singly or in combination with other products.
- PROMPT NOTICE OF CLAIM: Prompt notice by Purchaser or any other person must be given of any claim in order that an immediate inspection of the field(s), seed, grain, and or silage or haylage produced therefrom may be made. Failure to give prompt notice shall bar Purchaser or any other person of any legal remedy.
- STATUTE OF LIMITATIONS: Any action against Seller and its sales representatives, or its distributors or dealers for the breach of this Agreement, including any warranties arising from it, must be commenced within one year after the cause of action accrues or be barred after such time. Where applicable, all required prerequisites to maintaining a legal action must be complied with prior to initiating the legal action. (See Arbitration/Conciliation/Mediation Section).
- PRODUCT INFORMATION: Any Product performance information You may have received is based upon historical field observations and analysis of traits by Seller Agronomists and Research Managers and may not predict future results. Hybrid and variety responses are variable and subject to any number of environmental, disease and pest pressures. Trait Scores are based upon period-of-years testing and may have changed since You made Your initial order. Before planting, contact your sales professional for the latest and complete listing of traits and scores for each product and for product placement and management suggestions specific to Your operation and local conditions. Efficacy levels are based on Seller and/or independent university entomologist results against susceptible insect populations. Product responses can vary by location, pest population, environmental conditions, and agricultural practices. With certain pests, a decrease of susceptibility to certain technology traits in corn has been observed in some insect populations, which may result in lower efficacy. Please refer to the Product Use Guide for more information.
- PRODUCT DISCOUNTS AND PHI FINANCIAL SERVICES, INC. STATUS: If You are a customer of PHI Financial Services, Inc., in 2017, all Your 2017 Deferred Payment loans must be paid in full by December 1, 2017, to retain eligibility for the prices and discounts offered on Your 2018 purchases.
- SEED AND TECHNOLOGY USE AGREEMENT (“TUA”): You must read, execute and comply with the TUA related to patent and other intellectual property rights covering the traits, germplasm, and other intellectual property contained in Seller’s proprietary varieties and hybrids. The terms and conditions of the Seller’s TUA are illustrated in the accompanying document.
If You have not signed the Seller’s TUA, then this document is not an offer or acceptance of an offer for sale of the Products listed and any purported sale of such Products is void. If You have received Products without signing a Seller TUA, Your use of those Products is unauthorized and unlicensed, and You must, either (i) return such Products to Seller, or (ii) sign a Seller TUA for such Products.
- INSECT RESISTANCE MANAGEMENT(IRM): By accepting delivery of any Seller Products with the Herculex® I Insect Protection trait, the Herculex RW Insect Protection trait, Herculex XTRA Insect Protection trait stack, the YieldGard® Corn Borer gene, the Agrisure Viptera® trait, or the Agrisure® RW trait, You are agreeing that You are contractually obligated to implement and comply with Insect Resistance Management (IRM) requirements defined in the Product Use Guide. Your contact information may be provided to a third party to conduct a Bt corn IRM on-farm refuge compliance assessment to satisfy terms of Seller’s Environmental Protection Agency (EPA) registrations for Bt corn Products. You also agree that information obtained or collected by Seller may be shared with the EPA for Pioneer to satisfy any legal, regulatory or other agency requirements and that Seller may enter Your premises to respond to claims of unexpected damage and to collect insects for use in Seller’s IRM research.
- PRODUCT STEWARDSHIP / BIOTECH SEED PRODUCTS: We are committed to the responsible management of all its Seed Products. By accepting delivery of any Seller Product, You agree You are contractually obligated to comply with all laws, regulations, and stewardship requirements described in the Product Use Guide (found at https://www.pioneer.com/home/site/us/products/stewardship/product-user-guides/) and any product-specific Stewardship Requirements, as each may be amended from time to time, which are incorporated into and are a part of these Terms and Conditions. In addition to all other applicable use restrictions, You agree that all crops and materials containing biotech traits, e.g., grain, may only be (a) exported, transferred or moved to or (b) used, processed, or transferred in jurisdictions where all necessary regulatory authorizations have been granted for those crops and materials for such activities. It may be unlawful to export, transfer, or move materials containing biotech traits across borders into jurisdictions where their import and use is not authorized. Products authorized in the United States may or may not be authorized in all global markets; therefore, the combination of these traits and the grain and certain byproducts (including oil, dried distillers grains, cobs, and husks) from these Products may not be authorized in some markets. You are required to discuss trait acceptance and grain purchasing policy with YOUR purchaser or grain handler prior to the delivery and sale of YOUR crop products (e.g., grain or other plant material containing biotech traits) and You should only deliver grain to a purchaser or grain handler that agrees grain and by-products will only be marketed in markets where such products are authorized for the specific use. For more detailed information on the status of a trait or stack, please visit www.biotradestatus.com. You further acknowledge and agree that any forward-looking statements made by seller related to regulatory approval timelines by their nature address matters that are, to different degrees, uncertain. These forward-looking statements of anticipated regulatory authorization timelines are not guarantees of government agency action and are based on certain assumptions and expectations of future events that may not be realized. For more information, contact your local Sales Professional.
- CONSENT TO JURISDICTION/VENUE: This Agreement is governed by the laws of the state of Iowa and the United States (other than the choice of law rules). Purchaser or any other person consents to the jurisdiction of the Federal and State courts having geographical jurisdiction over Des Moines, Iowa, for resolution of any disputes, whether or not such are first subject to arbitration, negotiation, or mediation under the applicable State’s seed laws where purchase occurred, and Purchaser shall not file a claim relating to this Agreement or the purchased products in any other court.
- NOTICE ARBITRATION/CONCILIATION/MEDIATION REQUIRED BY SEVERAL STATES: Under the seed laws of several states ARBITRATION, CONCILIATION or MEDIATION is required as a prerequisite to maintaining a legal action based upon the failure of Seed to which this notice is attached to produce as represented. The Purchaser shall file a complaint (sworn for some states; signed for some states) along with the required filing fee (where applicable) with the Commissioner/Director/Secretary of Agriculture, Seed Commissioner, or Chief Agricultural Officer within such time as to permit inspection of the crops, plants or trees by the designated agency and the sales professional from whom the Seed was purchased. A copy of the complaint shall be sent to the Seller by certified or registered mail or as otherwise provided by state statute. PLEASE CONSULT PURCHASER’S STATE DEPARTMENT OF AGRICULTURE FOR SPECIFIC REQUIREMENTS BEFORE ANY LEGAL ACTION IS INITIATED. Failure to follow this procedure could limit Purchaser’s legal rights, including the remedy recoverable, depending on the law of Purchaser’s state. NOTICE OF BINDING ARBITRATION: In addition to the mandatory arbitration required by several states, Purchaser and Seller agree that any claim or civil action of any nature arising out of or relating to the performance or quality of this Product shall be submitted to binding arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules. The place of arbitration shall be Des Moines, Iowa, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Disputes concerning or related to the use restrictions and limited licenses associated with this Product, or concerning or related to intellectual property rights of Seller in or related to this Product, or claims or causes of action brought by Seller against the Purchaser for failure to pay for this Product, are not subject to this NOTICE OF BINDING ARBITRATION.
- PLANT VARIETY PROTECTION ACT (PVPA): The PVPA excludes others from unauthorized seed propagation or from selling protected varieties except as provided by the PVPA. PVPA certificates issued or pending before April 4, 1995, permit a Grower to save only as much seed as needed to plant a crop on the Grower’s own farm, and allow the Grower to sell as planting seed only so much of that saved seed as is not actually planted. PVPA certificates issued on or after April 4, 1995, permit only saving and planting of the saved seed by the Grower on the Grower’s own farm. No Seed grown from Seed protected under these newer PVPA certificates can be sold as planting Seed without authorization from the PVPA certificate holder. This PVPA may not be the only type of intellectual property of these Seeds, and other protection may preclude the saving of this Seed. Additionally, You have agreed to only use these Seeds for a single crop in a single growing season by contract.
- NOTICE OF TRAIT PATENTS AND LIMITED LICENSES: This Agreement covers plant varieties which have intellectual property protection, including plant variety certificates, confidential information, trade secrets and patents including but not limited to patented germplasm, transgenic traits, native traits, transformation technologies, methods of use of said plants, breeding methods, plants, some of which are listed here: https://www.pioneer.com/home/site/us/products/stewardship/pioneer-patents/. This Agreement is entered into between You (Grower) and Seller and provides Grower the opportunity to purchase and plant proprietary plant varieties and hybrids (“Seed”). The Agreement covers plant varieties which have intellectual property protection, including plant variety certificates, confidential information, trade secrets and patents including but not limited to patented germplasm, transgenic traits, native traits, transformation technologies, methods of use of said plants, breeding methods, plants containing the Genuity® Roundup Ready 2 Yield® trait, Roundup Ready® Corn 2 gene,; the LibertyLink® gene; the Herculex® I insect protection trait, Herculex RW rootworm protection trait; Herculex XTRA traits; the YieldGard® Corn Borer gene, the Agrisure Viptera® trait, the Agrisure® RW gene, Plenish®^ soybean trait, Bolt®, alfalfa with the Genuity® Roundup Ready® gene, alfalfa with HarvXtra® technology, canola with the Roundup Ready gene, the Plenish®^ soybean trait, or other traits and technologies and/or any combination of these traits and technologies (“Technologies”). This Agreement is for a purchaser of Seed for planting a commercial crop in a single season, it is understood that any entity authorized to sell Seed to Grower is acting as an agent of Seller with respect to this Agreement and any rights and benefits under this Agreement shall accrue to Seller. The term of this Agreement, and the license contained herein, shall begin on the date the Agreement is duly signed.
- SEVERABILITY: If any provisions, or part thereof, of this Agreement are found to be invalid for any reason, the other provisions, and parts thereof, shall not be affected and shall remain in full legal force and effect.
- ENTIRE AGREEMENT: By acceptance of the Seed or other Products, the Purchaser or any other person acknowledges that the foregoing terms including your obligations, restrictions, and rights of use as stated fully on the accompanying materials, including any and all of the bag and tag restrictions, invoice restrictions, and, when applicable, the TUA and Product Use Guide are conditions of the purchase and constitute the entire agreement between the parties regarding warranty or other liabilities and the remedy therefor. This Agreement cannot be modified by any oral or other written agreement.
^ EXPORT APPROVAL NOTICE: These products are authorized for planting in the United States and Canada. While many import market authorizations are in place, grain and byproducts produced from grain containing this technology may not be authorized in some markets. Growers that use this product are required and agree to adhere to the stewardship requirements as outlined in the Product Use Guide and product-specific stewardship requirements for this product. For questions regarding product stewardship and biotech traits, please contact your sales representative or refer to www.pioneer.com/stewardship. Growers are required to discuss trait acceptance and grain purchasing policies with their local grain handler prior to delivering grain containing biotech traits.
Always follow grain marketing, stewardship practices and pesticide label directions. Varieties with the Genuity® Roundup Ready 2 Yield® (RR2Y) trait contain genes that confer tolerance to glyphosate, the active ingredient in Roundup® brand agricultural herbicides. Roundup® brand agricultural herbicides will kill crops that are not tolerant to glyphosate. Genuity®, Roundup® and Roundup Ready 2 Yield® are registered trademarks of Monsanto Technology LLC used under license. Individual results may vary, and performance may vary from location to location and from year to year. This result may not be an indicator of results you may obtain as local growing, soil and weather conditions may vary. Growers should evaluate data from multiple locations and years whenever possible.
DO NOT APPLY DICAMBA HERBICIDE IN-CROP TO SOYBEANS WITH Roundup Ready 2 Xtend® technology unless you use a dicamba herbicide product that is specifically labeled for that use in the location where you intend to make the application. IT IS A VIOLATION OF FEDERAL AND STATE LAW TO MAKE AN IN-CROP APPLICATION OF ANY DICAMBA HERBICIDE PRODUCT ON SOYBEANS WITH Roundup Ready 2 Xtend® technology, OR ANY OTHER PESTICIDE APPLICATION, UNLESS THE PRODUCT LABELING SPECIFICALLY AUTHORIZES THE USE. Contact the U.S. EPA and your state pesticide regulatory agency with any questions about the approval status of dicamba herbicide products for in-crop use with soybeans with Roundup Ready 2 Xtend® technology. ALWAYS READ AND FOLLOW PESTICIDE LABEL DIRECTIONS. Soybeans with Roundup Ready 2 Xtend® technology contain genes that confer tolerance to glyphosate and dicamba. Glyphosate herbicides will kill crops that are not tolerant to glyphosate. Dicamba will kill crops that are not tolerant to dicamba. Roundup Ready 2 Xtend® is a registered trademark of Monsanto Technology LLC used under license.
Do not export NuTech Seed alfalfa Seed or crops containing Genuity® Roundup Ready® technology including hay or hay products, to China pending import approval. In addition, due to the unique cropping practices, do not plant this product in Imperial County, California. Always Read and Follow Pesticide Label Directions. Alfalfa with the Genuity® Roundup Ready® technology provides crop safety for over-the-top applications of labeled glyphosate herbicides when applied according to label directions. Glyphosate agricultural herbicides will kill crops that are not tolerant to glyphosate. ACCIDENTAL APPLICATION OF INCOMPATIBLE HERBICIDES TO THIS VARIETY COULD RESULT IN TOTAL CROP LOSS.
HarvXtra® is a registered trademark of Forage Genetics International, LLC. HarvXtra® alfalfa with Roundup Ready® technology is enabled with technology from The Samuel Roberts Nobel Foundation, Inc. Roundup Ready® is a registered trademark used under license from Monsanto Company. Do not export NuTech Seed alfalfa Seed or crops containing Genuity® Roundup Ready® technology including hay or hay products, to China pending import approval. In addition, due to the unique cropping practices, do not plant this product in Imperial County, California. Always Read and Follow Pesticide Label Directions. Alfalfa with the Genuity® Roundup Ready® technology provides crop safety for over-the-top applications of labeled glyphosate herbicides when applied according to label directions. Glyphosate agricultural herbicides will kill crops that are not tolerant to glyphosate. ACCIDENTAL APPLICATION OF INCOMPATIBLE HERBICIDES TO THIS VARIETY COULD RESULT IN TOTAL CROP LOSS.
Herculex® Insect Protection technology by Dow AgroSciences and Pioneer Hi-Bred. Herculex® and the HX logo are registered trademarks of Dow AgroSciences LLC.
YieldGard®, Genuity®, the YieldGard Corn Borer Design, Roundup Ready® and Roundup Ready 2 Yield® are registered trademarks of Monsanto Technology LLC used under license.
Liberty®, LibertyLink® and the Water Droplet Design are trademarks of Bayer.
Agrisure® and Agrisure Viptera® are registered trademarks of, and used under license from, a Syngenta Group Company. Agrisure® technology incorporated into these Seeds is commercialized under a license from Syngenta Crop Protection AG.
Products are provided subject to the terms and conditions of purchase which are part of the labeling and purchase documents. ®, TM, SM Trademarks and service marks of DuPont, Pioneer or their respective owners. © 2017 PHII.