§1 General – scope of application, definition of terms
- These terms and conditions of sale and delivery form part of all delivery contracts, agreements and quotations. They shall be deemed to be accepted upon placement of an order or acceptance of delivery at the latest.
- Consumers within the meaning of these General Terms and Conditions of Sale and Delivery are natural persons who have concluded a legal transaction for purposes that do not predominantly concern their commercial or self-employed occupational activity. Business enterprises within the meaning of these General Terms and Conditions of Sale and Delivery are natural persons or legal entities that, upon conclusion of a legal transaction, are performing a commercial or self-employed occupational activity. Customers within the meaning of these General Terms and Conditions of Sale and Delivery can be both consumers and business enterprises.
- We explicitly reject terms and conditions of purchase or order and other general terms and conditions of business that deviate from our General Terms and Conditions of Sale and Delivery, contradict them or supplement them. Even if we acknowledge such deviating terms and conditions they shall not become an integral part of the contract unless we explicitly consent to their validity in writing.
§2 Conclusion of the contract, reservation in the event of not receiving goods ourselves
- All quotations issued by us shall be subject to change.
- Upon ordering goods the customer bindingly declares that he wishes to purchase such goods.
- The contract shall only be concluded once we accept the customer’s order in written form (e.g. by letter, fax or e-mail) or deliver the goods to the customer.
- Should we not have declared acceptance of the customer’s order within 14 days or performed delivery, the customer shall not be bound to his order.
- Subsidiary agreements shall only become effective if they are confirmed in written form.
- Should we not receive deliveries ourselves, despite having placed appropriate identical orders with reliable suppliers, we shall be released from our obligation to perform and shall be entitled to withdraw from the contract. We shall be obliged to immediately notify the ordering party of the non-availability of the goods or services and undertake to promptly reimburse the ordering party for all services already provided in return.
§3 Prices and terms of payment
- All prices are quoted in euro. Unless otherwise stated prices are quoted ex point of sale and exclude packaging and transportation.
- Foreign currencies shall be converted into euro at the German Bundesbank’s official selling rate for the respective currency on the day of issue of the invoice, unless the invoice has been issued in the respective foreign currency.
- We reserve the right to request cash on delivery for goods that are posted upon customer request, provided the customer is a business enterprise within the meaning of these Ts&Cs.
- Payment shall become due upon receipt of the goods. Payment shall be made at the time of purchase in the retail outlet.
- Payment default shall occur following a period of 20 days after receipt of the invoice and after receipt of the goods. The customer shall not be in arrears if the goods and/or services are not delivered/provided as a result of a circumstance for which the customer is not responsible.
§4 Prohibition of set-off, limitation of the right of retention, right to refuse performance
- The customer shall only be entitled to rights of set-off if his counterclaims are legally established, due for judgement, uncontested or recognised by us.
- The customer shall only be entitled to exercise his right of retention where his counterclaim is based on the same contractual relationship.
- If, following conclusion of the contract with the customer, is should become apparent that our claim to payment is at risk due to the customer’s inability to pay, we shall be entitled to refuse to deliver/perform the goods/service incumbent upon us. This right to refuse performance shall be inapplicable if the customer makes the payment or has provided commensurate security. We shall be entitled to set an appropriate period within which the customer shall make payment or provide security. Should this period expire without payment being made, we shall be entitled to withdraw from the contract.
§5 Transfer of risk, transport, shipping and packaging
- If the customer is a business enterprise, the risk of accidental loss and accidental deterioration of the goods shall pass to the customer at the time the goods are handed over and, for mail orders, upon delivery of the goods to the freight forwarder, the carrier, or other persons or establishments appointed to perform the delivery.
- If the customer is a consumer, the risk of accidental loss and accidental deterioration of the sold goods shall only pass to the customer at the time the goods are handed over or, in the case of mail orders, when the goods are delivered.
- If the customer delays acceptance of the goods they shall still be deemed to have been handed over.
- Transport insurance cover will only be taken out upon the express wish of and at the expense of the customer.
- Non-returnable packaging will be invoiced at cost price. Reusable packaging (e.g. stacking mesh pallets, tree nursery pallets) remain our property and must be returned at the customers’ expense. Customers who are consumers will be informed of any additional costs for this before the contract is concluded.
- Deliveries can only be made via freely accessible, hard-surfaced roads and unloading is not included.
§6 Delivery obligations, temporary and permanent obstacles to performance/delivery
- In the event of weather catastrophes such as drought, frost or hail or other unforeseeable circumstances for which we are not responsible, such as terror attacks, epidemics, strikes, lockouts, war or war-like events, the delivery period shall be extended by the duration of such events. Strikes and lockouts at our own company shall not be covered by the above clause. Should the obstacle to delivery/service provision be not just a temporary event, we shall be released from our supply obligation in the event that:
- delivery is rendered impossible by the stated circumstances (cf. § 275 par. 1 BGB (German Civil Code)).
- the service or delivery requires of us a level of expenditure which, taking into consideration the obligations incumbent upon us and the principle of good faith, is manifestly disproportionate to the customer’s interest in fulfilment. When determining what may reasonably be required of us, the question of whether we are responsible for the obstacle to delivery/service provision must also be taken into consideration.
- we are to deliver/perform the service ourselves and, after weighing up the obstacle to delivery/service provision with the customer’s interest in fulfilment, this cannot reasonably be required of us.
- Delivery dates shall only be binding upon us if they are confirmed in written form.
- We expressly reserve the right to make part deliveries.
$7 Dimensions and samples
- All dimensions are approximate. Deviations in the order of ±10% shall be permitted. For plants, the quality regulations for plants from tree nurseries issued by the Forschungsgesellschaft Landschaftsentwicklung Landschaftsbau e.V. (FLL) (Landscape Development and Landscape Construction Research Society), as enclosed with these Ts&Cs, shall apply.
- Samples are indicative of average quality only. Not all plants will exhibit exactly the same qualities as the sample.
§8 Retention of title
- For contracts with consumers, we retain the title to the goods until complete payment of the purchase price has been received. For contracts with business enterprises, we retain the title to the goods until all accounts receivable from an on-going business relationship, including ancillary claims, have been settled. The retention of title shall also remain effective if individual claims are included in an open account and the balance has been determined and acknowledged.
- Our ownership of the goods subject to retention of title shall not be lost if business enterprises acting as customers set down or plant the delivered plants on their own or on a third party’s property until such time that the goods are resold. The goods subject to retention of title shall be stored, set down, or planted separately from other plants and shall be marked such that it is clear that they originate from us. The customer undertakes to treat the goods subject to retention of title with care and free of charge. This includes correct storage, planting, fertilisation, and irrigation in particular.
- The customer undertakes to immediately inform us should a third party gain access to the goods, for instance in the event of seizure, of any damage to the goods or in the event the goods are destroyed, giving the name and address of the attaching creditor. The customer shall notify us immediately of a change in ownership of the goods or a change of address.
- We shall be entitled to withdraw from the contract and demand the return of the goods if the customer is in breach of contract, in particular in the event of payment default or should there be breach of an obligation as set forth in clauses 2 and 3 of this provision.
- The customer shall be entitled to re-sell the goods supplied by us in the normal course of business. It is not permitted to make other dispositions, in particular pledges, nor offer the goods as collateral. If the goods subject to retention of title are not paid for immediately by third party buyers when resold, the customer undertakes to resell under retention of title only. Authorisation to resell the goods subject to retention of title shall immediately become invalid if the customer suspends payment or defaults in payment to us.
- The customer herewith assigns to us all claims including securities and ancillary rights that accrue to it against the end customer or third parties with or in connection with the resale of goods subject to retention of title. We accept such assignment. The customer may not make any agreement with its buyers which in any way exclude or negatively affect our rights or invalidate an advance assignment of the claim. In the event the goods subject to retention of title are sold together with other items, the claim against the third-party buyer, amounting to the delivery price agreed upon between us and the customer, shall be deemed to be assigned should it be impossible to determine the amounts for the individual goods from the invoice.
- The customer shall be entitled to collect the claims assigned to us until we revoke that entitlement, which we may do at any time. Upon request by us, the customer undertakes to provide us with the information and documents necessary for collecting the assigned claims and – where we do not do this ourselves – to immediately notify its customers of the assignment to us.
- If the customer has already assigned claims from the resale of the goods subject to retention of title, in particular as a result of non-recourse or recourse factoring, or has made other agreements on the basis of which our current or future liens could be negatively affected in accordance with this section, he shall inform us thereof immediately. In the case of recourse factoring, we shall be entitled to withdraw from the contract and request that goods already delivered be returned; the same shall also apply in the case of non-recourse factoring if, in accordance with the contract with the factoring company, the customer cannot freely control the purchase price of the claim.
- If the value of existing securities – pursuant to the above provisions – provided to us exceeds our secured claims by more than 10% overall, we shall, at the request of the customer and at our discretion, be obligated to release the securities.
- The goods subject to retention of title may be processed, mixed and/or combined in accordance with § 950 BGB (German Civil Code) but without any obligation on our part deriving therefrom. If the goods subject to retention of title are processed, mixed or inseparably combined with other items not belonging to us, we shall then acquire co-ownership of the new item in proportion to the ratio of the invoice value of our goods to the invoice value of the other processed or combined items. If our goods are combined and inseparably mixed or combined with other movable items to form a unified item that is to be considered as the main item, the customer shall already at this time assign co-ownership to us in proportion to the ratio of co-ownership. The customer shall store the fully-owned or jointly-owned property for us free of charge. The ensuing rights of co-ownership shall be considered to be goods subject to retention of title. At our request, the customer undertakes all times to provide us with all of the information required to pursue our rights of ownership or of co-ownership.
No warranty of any type is given. Should the customer expressly demand a warranty for plant growth or a guarantee of varietal identity, this will require a special agreement to be reached between us and the customer which regulates further details.
§10 Material defect warranty, installation and removal costs, obligation to notify obvious defects,
- If the buyer is a business enterprise, we shall, at our own discretion, be entitled to subsequent fulfilment, either to rectify the defect or make a replacement delivery (delivery of non-defective goods).
- If the buyer is a consumer, then he shall, in the event of a defect, be entitled to decide whether subsequent fulfilment should take the form of rectifying the defect or a replacement delivery. We are, however, entitled to reject the chosen form of subsequent fulfilment, if it is only possible at disproportionately high cost and if the alternative method of subsequent fulfilment entails no substantial disadvantages for the consumer.
- If the subsequent fulfilment fails, the customer may, at his discretion, choose to reduce the fee or withdraw from the contract. In the event of a minor infringement of an obligation, particularly for marginal defects, the customer shall not be entitled to withdraw from the contract.
- The customer shall furthermore be entitled to withdraw from the contract in the following cases:
- if we refuse the type of supplementary performance on the grounds of disproportionately high costs,
- if supplementary performance by us is unreasonable for the customer,
- if we have not performed a service by a date stipulated in the contract or within a period stipulated in the contract (so-called fixed delivery date), even though the customer had informed us before conclusion of the contract or we had become aware through circumstances other than those associated with concluding the contract, that timely performance or performance within the deadline is essential for the customer,
- if we have seriously and finally refused supplementary performance,
- if special circumstances exist surrounding a service that our company has not performed as specified in the contract which, taking into consideration the interests of both parties, justifies the immediate withdrawal from the contract by the customer.
- If the customer is a consumer and has installed the defective item into another item, in accordance with its type and intended use, or has fitted it to another item, we shall be obligated to reimburse the customer for the necessary costs of removing the defective item and installing or affixing the repaired item or newly delivered item. The statutory provisions shall apply in this respect.
- If the customer is a business enterprise, he shall not be entitled to demand that we reimburse him for the necessary costs of removing the defective item and installing or affixing the repaired item or newly delivered item. Such claims for compensation are expressly excluded, unless we have maliciously concealed the defect.
- Business enterprises must notify us in writing of obvious defects within a period of 5 days of receiving the goods; otherwise the assertion of warranty claims in this respect is excluded. This shall not apply if we have maliciously concealed the defect. To comply with the deadline it is sufficient for the notification of defect to be sent in sufficient time.
- Consumers must notify us in writing of obvious defects within a period of two months of receiving the goods. To comply with the deadline it is sufficient for the notification of defect to be sent in sufficient time. Should the consumer fail to send such notification, his warranty rights pertaining to this obvious defect shall cease to exist once the two-month deadline has expired. This shall not apply if we have maliciously concealed the defect.
- If a living plant is the purchased item and the plant dies, becomes infested with pests or otherwise develops a disease, even within six months of the transfer of risk, the consumer shall assume the burden of proof that this situation had not already existed at the time of handing over the goods and did not occur due to improper treatment of the plant by the consumer.
- Should we fail to perform a due service or fail to perform it as specified in the contract, the customer shall, without requiring a specific deadline, be entitled to demand compensation from us if we have seriously and finally refused to perform or if special circumstances exist which, taking into consideration the interests of both parties, justifies immediately asserting a claim for compensation. In terms of the necessary costs of removing the defective item and installing or affixing the repaired item or newly delivered item, the limitations set forth in par. 5 of this section shall apply.
- In terms of obvious defects, unless otherwise defined in this section, the period of limitation relating to warranty claims for material deficiencies for business enterprises shall be one year from delivery of the goods. For consumers the period of limitation shall be two years from delivery of the goods.
§11 Varieties protected by patents and plant variety rights
The purchase of varieties that are protected by patents and plant variety rights, the names of which are protected by trademark law, obligates the customer, when considered to be a business enterprise, to only resell those varieties with the original labels that were supplied with the plants and not to use the purchased plants, or parts thereof, for breeding purposes. The customer, who is considered to be a business enterprise, undertakes in turn to impose the same requirements upon his customers in cases where these plants are resold.
§12 Limitation of liability/disclaimer
- In the event that we breach our obligations our liability shall be limited to intent and gross negligence. These limitations of liability shall also apply to breaches of obligations by our statutory representatives and vicarious agents.
- The limitations of liability and disclaimers as set forth in par. 1 of this section shall not apply:
- in the event that we or our vicarious agents breach an obligation intentionally or with gross negligence,
- in the event of damages where we or one of our vicarious agents are responsible for loss of life, personal injury or damage to health (personal injuries),
- in the event of a delay for which we are responsible, provided a fixed delivery date had been agreed,
- in the event that a warranty is given in respect of the characteristics of the goods, if a successful performance guarantee was given or if a procurement risk was assumed,
- for claims resulting from the product liability law,
- in the event that cardinal obligations are breached (essential contractual obligations). These include such damages that we cause through an ordinary negligent breach of such contractual obligations, the fulfilment of which is essential for the proper performance of the contract and upon which the customer regularly relies and may rely.
- Where no cases as set forth in par. 2 of this section exist, our liability, and that of our vicarious agents shall, in the event of breaches obligations caused by ordinary negligence, be limited to the foreseeable damages that are typical for this kind of contract. We shall therefore not be liable for damages that we would not have been expected to have foreseen at the time of concluding the contract as a possible consequence of the breach of contract. We shall also not be liable for damages not caused to the delivered item itself; in particular, we shall not be liable for lost profits.
$13 Final provisions
- The law of the Federal Republic of Germany shall apply. The provisions of the UN Sales Convention (CISG) shall not apply.
- If the customer is a trader, a corporate body under public law or a special institution under public law, the exclusive place of jurisdiction for all disputes arising from this contract shall be the location of our registered office. The same shall apply if the customer does not have a place of general jurisdiction in Germany or if his domicile or habitual residence at the time of the commencement of proceedings are unknown. Otherwise the statutory provisions shall apply.
- Should any individual provisions of the contact with the customer, including these general terms and conditions of business, be or become ineffective in part or in full, this shall not affect the validity of the remaining provisions.