§ 1 – General
1. Only the following Terms and Conditions of Delivery and Business apply to all – even future – deliveries and services, even if, for future business transactions, they are not explicitly referred to or the client uses other terms and conditions. Such other terms and conditions will only be accepted if they have been explicitly confirmed by us.
2. In any case, individual agreements concluded with the client for a special case always have priority over these General Terms and Conditions.
3. Legally relevant declarations and notifications that must be provided to us by the client after contract conclusion (e.g. deadlines, notices of defects, declaration of withdrawal or of price reduction) must be made in writing to be effective.
§ 2 – Subject matter of the contract
1. As far as nothing else is explicitly indicated in our order confirmation, the following applies:
The objects of the delivery are plants of common type and quality from in-house production. Growing the plants and varietal identity are not required.
Instead of the variety mentioned in the order confirmation, a similar equivalent variety can be delivered.
2. Samples only show the average set of qualities. Not all plants of the delivery turn out to be like the samples provided.
Since they are natural products, their dimensions are only indicated approximately. Small positive and negative deviations are inevitable.
3. As far as nothing else is agreed and it is reasonable for the client, the supplier is entitled to make partial deliveries.
4. A delivery of plus or minus 10% or less of the order volume is admissible if this is required due to the constitution of the merchandise or the respective delivery unit and reasonable for the client.
§ 3 – Contract conclusion/right of withdrawal
1. With respect to prices, quantities, possibility of delivery and delivery time, our offers are always non-binding.
2. By ordering the merchandise, the client gives a binding declaration that he wants to buy the merchandise. However, the contract is only concluded when the supplier confirms the acceptation of the order. The content of our order confirmation is decisive for the business transaction. In case of an immediate order fulfillment, the delivery note or the commercial invoice are also valid as order confirmation.
3. If the client orders by means of electronic media, we will promptly confirm the reception of the order. The confirmation of receipt does not yet constitute a binding acceptance of the order by us. The confirmation of receipt can be linked to the confirmation of acceptance.
4. As far as we cannot keep binding delivery deadlines for reasons beyond our responsibility (service not available), we will inform you thereof immediately and simultaneously indicate the expected new delivery deadline. If the service is still not available until the new delivery deadline, we are entitled to partially or totally withdraw from the contract; we will then promptly restitute an already provided compensation. A service is deemed unavailable, in particular, if the contract products are wholly or partially damaged by weather-related disasters, like hail damage, frost damage, drought damage, or due to diseases.
§ 4 - Prices/payment terms
1. As far as nothing else is explicitly agreed, the agreed price, in principle, is the price for „delivery ex works“.
2. The prices do not include packing, insurance and other ancillary costs. VAT at the respective legal amount is charged additionally.
3. The invoices provided to the client are immediately due and payable. In case of payment within eight days from the invoice date, a cash discount of 2 % is granted.
4. If a client exceeds a possible, specifically agreed payment deadline, all claims of the supplier immediately fall due, even if the payment terms have not yet been exceeded. For future claims, no more payment term is granted.
5. In case of default of the client, the supplier is entitled not to perform agreed deliveries and services until either the default has been cured or a corresponding security has been provided by the client or by a third party for the benefit of the client.
6. The rights of the suppliers from § 321 BGB remain unaffected.
7. The client is entitled to setoff or retention rights only as far as his claim is legally confirmed or undisputed. In case of defects in the delivery, the counter-rights of the client, in particular according to § 10 of these General Terms and Conditions, remain unaffected.
§ 5 – Reservation of title
1. The delivered merchandise remains the property of the supplier until the complete payment of all claims resulting from the business relation with the client or to arise from it in the future.
2. The reservation of title also remains valid if individual claims of the supplier are integrated into an ongoing invoice and the balance is calculated and confirmed.
3. The reserved property is not lost by the client temporarily storing, heeling in, or planting the delivered plants on his or on a foreign property. The client is obliged to make sure that the plants can be identified as stemming from the supplier. The client agrees to grant to the supplier, if required, access to the business documents for inspection.
4. Before the complete payment of the secured claim, the reserved products may neither be pledged to third parties nor chattel mortgaged. The client must inform us immediately if and as far as third parties seize our products.
5. In case of a breach of the contract by the client, in particular if the payable purchase price is not paid, we are entitled, according to the legal provisions, to withdraw from the contract or/and to claim back the merchandise on the basis of the reservation of title. The demand for surrender does not simultaneously include a declaration of withdrawal; instead, we are entitled to claim back the merchandise only and to reserve a withdrawal. If the client does not pay the due purchase price, we may assert these rights only if before, we have granted an appropriate delay for payment without success or if such granting of a delay is not necessary according to the legal provisions.
6. The supplier can obtain satisfaction by freely selling the restituted merchandise.
7. The client is entitled to resell and/or further process the reserved merchandise within the regular course of business. In that case, the following complementary provisions apply.
a) The reservation of title extends to the products resulting from processing, mixing or combining our merchandise at their full value, and we are considered as the producer. If, in case of processing, mixing or combining with third parties‘ merchandise, their title remains valid, we are thus acquiring a co-ownership proportional to the invoice values of the processed, mixed or combined merchandise. Apart from that, for the resulting product, the same applies as for the reserved merchandise delivered.
b) The client already now assigns the claims against third parties arising from the resale of the merchandise or the product to us as a whole or at the amount of our co-ownership proportion as security. We accept the assignation. The obligations of the client mentioned in n° 4. also apply with respect to the assigned claims.
c) Next to us, the client remains entitled to the collection of the claim. We agree not to collect the claim as long as the client fulfills his payment obligations to us, does not enter into payment default, no application for the opening of insolvency proceedings has been filed and there is no other deficiency of his performance capacity. If this is the case, however, we can require that the client informs us about the assigned claims and their debtors, provides all information necessary for their collection, provides the associated documents and informs the debtors (third parties) about the assignation.
d) If the realizable value of the securities exceeds our claims by more than 10 %, we will, upon request of the client, release securities at our discretion.
§ 6 – Transfer of risk
1. The deliveries are made from the point of sale, which is also the place of performance.
2. Potential transports/dispatches, upon request in the client order, will be made by a forwarder to the delivery address. In that case, if nothing else is agreed, we are entitled to determine the method of transport (in particular the transport company, way of transport, packaging) ourselves.
The transport/dispatch will only occur for the account and in the name of the client and at his risk.
3. We are liable for mistakes in the packaging of the merchandise at their dispatch, in the selection of the means and the way of transport only if we or our agent are convicted of intent or gross negligence.
4. The risk of accidental loss or accidental degradation of the merchandise is transferred to the client at the latest with its delivery. However, in case of a sale by dispatch, the risk of accidental loss or accidental degradation of the merchandise and the risk of delay are already transferred with the transfer of the merchandise to the forwarder, the carrier or other person or entity assigned for the performance of the delivery.
§ 7 – Delay for deliveries
1. The delivery dates indicated in the offer or in the order confirmation are non-binding approximations. The delivery time mentioned in our order confirmation starts on the day of the order confirmation and is conditional upon the timely reception of all material, documents etc. to be provided by the client.
2. The supplier is not liable for an impossibility of delivery or for delivery delays, as far as they have been caused by force majeure or other events not foreseeable at the moment of contract conclusion (e.g. operational disruptions of any kind, material or energy procurement problems, transport delays, strikes, lawful lockouts, shortages of labor, energy or raw materials, problems to obtain required permits from authorities, measures from authorities, missing, incorrect or delayed deliveries from suppliers) which are not attributable to the supplier.
As far as such events make the delivery or service substantially more difficult or impossible for the supplier and the impediment is not only temporary, the supplier has the right to withdraw from the contract. In case of only temporary obstacles, the delays of delivery or performance are extended, or the deadlines for delivery or performance are postponed by the length of the impediment plus an appropriate lead time. As far as the acceptance of the delivery or service is not reasonable anymore for the client because of the delay, he can withdraw from the contract by immediate written notice to the supplier.
3. If the supplier enters into default, the client can, in addition to the delivery, claim compensation for damages potentially caused by the delay; in case of slight negligence of the supplier, this claim is limited to a maximum of 5 % of the agreed purchase price for the part of the deliveries that could not be used as intended because of the delay.
4. As far as the client can claim damages instead of performance, this entitlement to compensation instead of performance is limited, in case of slight negligence of the suppliers or his agents, to a maximum of 30 % of the purchase price for the part of the deliveries that could not be used as intended because of the delay.
5. The limitation of liability provided in n° 3 + 4 does not apply as far as the supplier must assume liability for intentional breach of duty or gross negligence.
The supplier must also assume unlimited liability for damages to life, body or health.
§ 8 – Packaging
The packaging is charged to the client at cost for material and labor. This does not apply to reusable culture vessels and means of transport. Those must be made available to the supplier again without freight within 4 weeks.
If this is not done, they will be invoiced.
Ancillary costs for certificates will be charged to the client.
§ 9 – Duty to notify defects
Apparent defects, the delivery of different objects or of insufficient quantities must be immediately reported in writing by the client, at the latest 5 days after arrival of the merchandise at the destination. Hidden defects must be reported in writing immediately after detection.
§ 10 – Defects of quality/defects of title/quantity shortages
For defects of quality and of title (including wrong and short delivery), the supplier is liable as follows:
1. For defects of quality and defects of title (including wrong and short delivery), we are liable under the legal preconditions and within the legal scope to grant subsequent performance, price reduction, conversion and compensation of expenses.
2. As far as the legal preconditions are fulfilled, we also assume liability to provide compensation instead of performance. In case of a merely negligent breach of duty by our company or our agents, the right to damages instead of performance is limited to the contractual, foreseeable damage. This limitation of liability does not apply if one of the cases mentioned in § 12 n° 1. of the Terms and Conditions is given, in which the supplier is liable without limitation in any case.
3. As far as any other claims for damages (other than compensation instead of performance) are justified by defects of quality and of title, we are liable according to the provisions of § 12 of these Terms and Conditions.
4. In all events, the special legal provisions for the final delivery of the merchandise to a consumer (recourse against supplier according to §§ 478, 479 BGB) remain unaffected.
5. By derogation from § 438 para. 1 n° 3 BGB, the general limitation period for claims from defects of quality and of title is 1 year from the transfer of risk.
The limitation periods of § 438 para. 1 n° 2 BGB (construction, building materials), of § 438 para. 1 n° 1 BGB (third parties‘ claims for restitution in rem), of § 438 para. 3 BGB (fraud) and of § 479 BGB (recourse against supplier in case of final delivery to a consumer) apply unchanged.
§ 11 – Impossibility, contract adaptation
As far as the delivery is impossible and the preconditions of § 7 n° 2. of these General Terms and Conditions are not fulfilled, the client is entitled to claim damages under the legal preconditions, unless the impossibility is not attributable to the supplier. However, the damage claim of the client is limited to 10 % of the value of that part of the delivery which cannot be used as intended because of the impossibility. This limitation does not apply to intentional breaches of duty or gross negligence of the supplier and his agents and to damages to life, body and health. The right of the client to withdraw from the contract remains unaffected.
§ 12 – Other damage claims
1. We are liable under the legal preconditions and within the legal scope
- for all damages to life, body and health and
- according to the Product Liability Act and
- in case of willful deception, in particular a fraudulent concealment of defects of quality and
- in case of assuming a guarantee for the quality of the object and
- in case of causing a damage by intent or gross negligence, even by agents.
2. We are liable under the legal preconditions for damages from the breach of an essential contractual duty (a duty the fulfillment of which only makes the regular execution of the contract possible and in the respect of which the contract partner regularly trusts and may trust).
In this case however, our liability is limited to the compensation for the foreseeable, typical damage.
3. If a damage that is not caused by default or impossibility occurs due to simple negligence – without any of the cases in n° 1 and 2 being present -, any damage claims for breach of duty and damage claims for breach of the obligation to respect the interests, rights and legal assets of the client are excluded.
In that case, we do not, in case of less than gross negligence, assume any liability to grant compensation instead of performance or compensation for futile expenses either. In case of a claim for damages instead of performance or for compensation of expenses due to defects of quality however, the liability according to § 10 n° 1 and n° 2 of these Terms and Conditions remains.
§ 13 – Place of performance and of jurisdiction
1. Place of performance for all services is the seat of the supplier.
2. If the client is a merchant within the meaning of the Commercial Code or a legal entity or special fund under public law, the place of jurisdiction - also internationally – for all disputes directly or indirectly arising from the contract relationship is the seat of the supplier. However, we are also entitled to file a lawsuit at the general place of jurisdiction of the clients.
§ 14 – Applicable law
German substantive law applies to the contractual relations, under exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
§ 15 – Final provisions
Even in case of the legal invalidity of individual clauses, the Terms and Conditions of Delivery and Business remain binding in their remaining parts.