1. These General Terms and Conditions form an integral part of all delivery contracts, agreements and offers. They are deemed to be acknowledged as soon as the order is placed or the delivery is accepted.
2. Diverging agreements require our written confirmation.
3. All offers are made without engagement and are subject to our availability. Accepted offers become binding upon confirmation or execution.
4. The receipt of orders shall be confirmed in writing by the seller. An order is deemed to be placed in accordance with the conditions agreed to in the confirmation, unless the buyer has raised objections within eight days after receipt of the confirmation of the order.
5. We expressly object to terms for purchases or offers which conflict with our conditions of sale and delivery. This also applies to any other general terms and conditions.
II. Prices and Terms of Payment
1. All prices are quoted in Euro exclusive of VAT, from the point o sale without packaging, transport and motorway toll (LKW-Maut). When a new catalogue/price list is published the old prices become invalid.
2. Foreign currencies are converted into Euro at the official selling rate quoted by the German Central Bank (‘Deutsche Bundesbank’) for the respective currency on the day of invoicing, unless the invoice has been rendered in this currency.
3. In the case plants are selected personally on our premises, list prices are not applicable.
4. We reserve the right to execute orders cash on delivery.
5. The term of payment is 30 days from the date of invoice.
6. The right to set our claims off against the customer’s counterclaims shall be excluded, unless the latter are undisputed or have been recognized by declaratory judgement. The right of retention can only be enforced on the basis of circumstances arising from the same delivery. In commercial matters, the exercise of the right to refuse performance, or of the right of retention from the part of our customers is to be excluded.
7. Cheques and/or bills are accepted only on account of performance with the proviso that they are honoured by the bank. Accruing charges and/or expenses are to be paid by the customer.
8. If the buyer’s financial circumstances substantially change for the worse, we are entitled to make the specific performance of our contract dependent upon the prepayment of the remuneration agreed upon, or upon the furnishing of a corresponding security. In the event that the buyer does not react, after an additional period of time of reasonable length has been granted, we are entitled to withdraw from the contract and claim damages.
9. In case of default of payment, companies will be charged, 9% and customers 5 % above the current bank rate quoted by the German Central Bank (Deutsche Bundesbank) and charged from the beginning of the default payment.
III. Packaging and Transport
1. Transport takes place for the account and at the risk of the buyer. Any charges accruing from the carriage to the ship or railway station are to be paid by the buyer. In case of delay in consignment the risk passes to the buyer from the day the goods are ready for dispatch, if the buyer is responsible for the cause of delay.
2. The seller is obliged to take due care of the packaging. The delivered items are to be marked clearly.
3. A transport insurance policy is only taken out on the express wish and at the expense of the buyer.
4. One-way packages are charged at cost price. Reusable packages (e.g. lattice boxes, pallets) remain our property and must be returned.
5. Packaging and transport costs as well as cartages may be charged forward.
6. Delivery by trucks can only take place on roads passable on all sides.
IV. Delivery Commitments
1. In case of weather catastrophes as, e.g., drought, frost, or hail, or other unforeseen circumstances not caused by our fault, such as epidemics, strike, lock-out, operational breakdowns of any kind, war, war-like events, monetary changes or government interference, the term of delivery is prolonged by the period of disturbance. If a delivery is rendered impossible owing to the aforesaid circumstances, we are released from our delivery commitments. Any claims for damages cannot be asserted by the buyer.
2. Fixed terms of delivery are only binding if they are confirmed in writing.
3. We expressly reserve the right to deliver in instalments.
V. Measures and Samples
1. All measures given are approximate measures. Upward or downward variations by 10 % are permissible.
2. The samples merely show the average qualities, but the plants must not all be the equivalent of such sample.
VI. Reservation of Title
1. The seller retains title to the delivered goods until all claims arising from the business relation have been settled including ancillary claims. The reservation of title continues even if several of the seller’s claims are included in a current invoice and the balance has been drawn and confirmed.
2. Until revocation by the seller, the buyer is entitled to resell the reserved goods in an ordinary course of business. The existing reservation of title shall be disclosed to the third party and, upon request, the seller shall be informes about the third party’s name and address.
3. The buyer is not entitled to any other dispositions of the reserved goods, which, in particular, applies to pledging or the transfer of ownership by way of security. If execution is levied against the goods bought subject to reservation, the seller shall be informed without undue delay by giving the execution creditor’s name and address.
4. The buyer’s claims arising from the resale, including all ancillary rights and any possible claims accruing from the balance, are herewith assigned to the seller. The seller accepts this assignment. Until revocation by the seller, or, at the latest, until the buyer’s failure to pay on due date, or until the buyer’s financial circumstances have substantially changed for the worse, the buyer is authorized to collect the assigned claims. From this date, the buyer herewith authorizes the seller to inform the third party about the assignment and to collect the claims by himself.
5. In case the value of the existing security exceeds all the buyer’s claims by more than 20 %, the seller, upon the buyer’s request, is obliged to release or return securities at his option. This can also happen on the request of a third party, if such party’s rights are impaired by the buyer’s excessive security.
6. The seller retains title to the reserved goods even if the customer covers the delivered plants with earth, or plants them on his, or other people’s, premises until they are resold. The reserved goods shall be stored separately, away from other plants. This shall also be the case if they are covered with earth or planted. In any way, they must be marked clearly, so that they may be recognized as the seller’s products. The seller is obliged to care for the reserved goods by appropriate storage, planting, fertilizing, and watering, without remuneration.
VII.Guarantee and Warranty
1. A guarantee that the plants will take root is not given. In case the buyer expressly wishes to be granted such guarantee, this may be invoiced separately. This guarantee extends over the period of one year from the date of delivery and takes for granted that the seller has cultivated the plants as required by their species. This in particular includes correct depth of planting, fertilization and irrigation. Cases of force majeur, especially drought, frost, pest infestation, etc., are not included in such guarantee.
2. A warranty for genuine varieties is only given upon express wish. In the case of fruit trees, the genuineness of both the varieties and the required documents is warranted until the end of the fifth year from the date of delivery. As regards berries, roses and other woody plants warranty is only given until the end of the second year from the date of delivery. However, no guarantee is granted for the genuineness of subsequent propagations. In the case of root stock and young plants the supplier warrants the genuineness of the delivered varieties for the period of one year after the date of delivery.
3. The plants are to be checked upon delivery. If any defects are discovered, written notice must be given without delay, at the latest, however, within 8 days after discovery. In the event of defects which can only be found out later, notice shall also be given in writing within 8 days after discovery, at the latest, however, by the end of 1 year after delivery. Private customers must assert defects within 1 year after delivery.
4. In case of defect the seller is entitled to deliver a substitute. If this turns out to be a failure, the buyer has the right to a reduction of the purchase price or withdrawal.
5. All claims for damages must not exceed the single net invoice value. Any further claims, for whatever reasons or on whatever bases, are excluded, unless the claim for damages are based on injury against life, body or health which is a negligence breach of duty of the seller or a premeditated/negligence breach of duty by one of his statutory agent. In the same way all claims for damages are not excluded which are based on a premeditated or gross negligence of the seller or his statutory agent.
6. The purchase of rose varieties which are protected by patent and species laws, and of roses the names of which are protected by trademark laws, commit the buyer to resell the varieties by trademark laws, commit the buyer to resell the varieties only with the orginal labels delivered together with the plants; moreover, the buyer must not use the roses, or parts of them, for propagation, neither may he sell them abroad. He is obliged to inform his customer in the case of resale that he, in turn, also has to comply with these conditions.
VIII. Place of Performance and Jurisdiction
1. For merchants and legal persons under public law the place of performance and jurisdiction is at the seller’s place of business.
2. The settlement of disputes is subject to German law. In cases of doubt the German wording of the General Terms and Conditions is decisive.