§1 General terms and conditions
1. These conditions are parts of all supply contracts, agreements and offers. They apply at the latest when placing the orders or when accepting the delivery.
2. Consumers in terms of these terms and conditions are natural persons who enter into business connexions without performing an industrial or a freelance activity.
Entrepreneurs in terms of these conditions are natural or legal persons
or business partnerships having legal capacity to enter into business connexions
performing an industrial or a freelance activity.
Customers in terms of these conditions are consumers as well as entrepreneurs.
3. We explicitly contradict conditions of purchase and order or other general terms and conditions which differ from our conditions of purchase and delivery, or which contradict or amend them; even with notice, those additional conditions do not become part of the contract unless their validity is explicitly approved and confirmed in written form.
§ 2 Conclusion of the contract
1. Our offers are subject to confirmation according to our availability.
2. By placing an order the customer declares bindingly to purchase the goods ordered
We are entitled to accept the contract offered with the order within two weeks after receipt.
The confirmation can be declared either in written form or by delivering the goods to the
3. In case the consumer orders the goods electronically, we will confirm the receipt of the order immediately. The confirmation is not yet a binding acceptance of the order. The confirmation can be connected to the declaration acceptance.
4. The conclusion of the contract is carried out with reservation of the right and timely delivery by our suppliers. This applies only in case we do not act for the non-delivery, especially when concluding a congruent hedging transaction with our supplier.
The customer will be informed immediately about unavailability of the service, the
consideration will be, as far as it has already accomplished, immediately refunded.
5. As far as the consumer orders the goods electronically, the wording is recorded and e-mailed to the customer together with the terms and conditions at hand.
§ 3 Prices and terms of payment
1.All prices apply from the point of sale without packing and transport in EURO including tax on sales. Former price lists expire after the forthcoming of new price lists. When forwarding the goods, the prices do not include postage, but the forwarding charges are added according to our present price list.
2. Foreign exchanges are converted to Euro according to the bank selling rate listed at the German Central Bank on the day of issuing the invoice, unless the invoice is not made out in the respective currency
3. List prices are not valid when choosing the plants in person at our company.
4. We reserve the right to carry out orders cash on delivery.
5. When using remote communication media, the customer will not have to pay additional costs.
6. The customer contracts to pay the purchase price of the goods within 30 days after receipt from invoice date. After the expiration of this time limit, the customer goes into delay of payment.
During the delay of payment, the consumer has to pay interest on the debt amounting to 5%
over base rate.
The entrepreneur has to pay interest on the debt amounting to 8% over base rate. With regard
to the entrepreneur, we reserve the right to prove and to assert a higher damage caused by
7. The consumer is entitled to a set-off only when his counterclaims have been confirmed legally binding or acknowledged by us. The assertion of a right of retention is only acceptable with regard to circumstances which result from the same delivery.
In the commercial legal relations, the exertion of the right to refuse a service or a right of retention on the part of our entrepreneur-customers is excluded
8. Cheques and drafts are only accepted with reserve of cashment. Transaction fees and costs caused thereby are at the expense of the purchaser.
9. In case the buyer’s financial circumstances deteriorate significantly, we are authorised to limit the supply of our conventionary service to the advance payment of the agreed payment or an adequate security. After setting an appropriate additional respite, we are entitled to claim damages and to withdraw from the treaty.
§ 4 Passing of risk, shipping and package
1. In case the buyer is entrepreneur, the risk of accidental cancellation or accidental deterioration of the goods when delivering / when dispatching goes to the shipper, carrier or other person or institution assigned to carry out the shipping.
2. If the buyer is consumer, the risk of accidental cancellation or accidental deterioration of the purchased goods goes to the buyer only when delivering the goods.
3. Delivery is not dependent on the buyer’s default of acceptance.
4. In case of purchase on our part, the seller has to carry out packing carefully and properly. Open wagonloads have to be covered. Single delivery items have to be marked clearly.
5. A transport insurance is only effected on explicit request and to the expense of our customers.
6. Non-returnable package is calculated at cost price. Reusable package (e.g. skeleton containers, tree nursery pallets) remain our property and have to be returned at the buyer’s expense.
7. Transport – and shipping costs as well as drayage can be calculated additionally.
8. A delivery by lorry can take place only on freely trafficable streets.
§ 5 Duties of delivery
1. In case of catastrophes like drought, frost or hail or other unexpected circumstances through no fault of one’s own e.g. epidemic plagues, strike, lockout, operational disorders of all kinds, war and war-like events, changes of currency or official interventions, the term of delivery extends to the duration of the obstruction. If the delivery becomes impossible due to the circumstances mentioned, we are released from duty of delivery. In cases like that, the buyer cannot claim damages.
2. On our part, fixed dates of delivery are only binding with a written confirmation.
3. Partial deliveries are explicitly reserved.
§ 6 Measures and samples
1. All measures are circa measures, deviations are acceptable up to dimensions of 10 % up or down.
2. Samples only show average condition. Not all plants have to be like the sample.
§ 7 Retention of title
1. In case of contracts with consumers, the goods delivered remain property of the supplier until the entire payment of the purchase price. In case of contracts with entrepreneurs, the goods delivered remain our property until the entire payment of all claims and side claims within the current transaction. Retention of title also continues to exist if some of our claims have been included in an account current and in case the balance has been struck and accepted.
2. Our property of plants under reserve does not expire if the entrepreneur as buyer plants the delivered plants on his own or other property. The reserved goods must be stored or planted separately from other plants and have to be clearly marked as our property. The customer is obligated to treat the reserved goods carefully. This includes especially proper storage, planting, manuring and watering.
3. The customer contracts to communicate us immediately the access by third persons, e.g. in case of garnishment, as well as damages or demolishment of the goods, and to state the name and address of the garnisher. A change in ownership of the goods as well as an own change of residence have to be communicated immediately.
4. We are entitled to withdraw from the contract and to reclaim the goods in case of attitudes of the customer which are contrary to the contract, especially in case of delay of payment or in case of breach of duty according to number 2 and 3 of this contract. 5.
5. The entrepreneur is entitled to resell the goods in a regular transaction. The entrepreneur assigns all claims, including ancillary rights and possible claims of balance, which the buyer is entitled to claim, to us. We accept the assignment. After the assignment, the entrepreneur is entitled to collect the claim. We reserve the right to collect the claim ourselves, as soon as the entrepreneur does not discharge his payment obligations and gets into default of payment.6.
6. Processing and handling of the goods by the entrepreneur takes always place on our instructions and name. In case our goods are mixed with goods which are not our property, we acquire the co-ownership in proportion to the value of the goods delivered by us to the value of the other goods.
§ 8 Guarantee and warranty
1. We do not guarantee the growing on of the plants. If the buyer explicitly demands a guarantee of growing on, a separate amount can be therefore calculated. A guarantee of growing on amounts to a year from the date of delivery and implies that the buyer treats the plants correctly . This includes the right planting depth, soil texture, manuring and watering. Cases of force majeure, especially drought, frost, pest decay, are not covered by the guarantee.2.
2. Only at explicit request do we guarantee the genuineness of the species. For fruit trees, we guarantee the genuineness of the species and of the substratums requested until the end of the fifth year from the day of delivery. For berries, roses and other bushes we guarantee the genuineness of the species until the end of the second year from the day of delivery. We do not guarantee the genuineness of the species of the breed. For budding substratum and seedings, the supplier guarantees the genuineness of the species supplied only until the end of a year from the day of delivery.
3. If the buyer is entrepreneur, we safeguard against defects of the goods at first at our own option in the form of rectification or compensation delivery.
4. If the buyer is consumer, he can choose between rectification or compensation delivery. We are, however, entitled to refuse the form of subsequent performance, if it is only possible with disproportional costs and if the other form of subsequent performance has no considerable disadvantages for the buyer.
5. If subsequent performance fails, the customer is entitled to claim reduction or cancellation of the contract. If the failure is only insignificantly contrary to the contract, especially if the defects are only insignificant, the customer is not entitled to cancel the contract.
6. Entrepreneurs have to indicate obvious defects in written form within a time limit of 8 days from receipt of the goods; otherwise the warranty claim is excluded. To ensure the time limit,
the timely dispatch is enough. The entrepreneur accounts for the full burden of proof for all conditions of demand, especially for the defects themselves, for the date of verification of the
defect and for the timely notification of defects.
Consumers must inform us in written form about evident defects within 10 days from the date of verification of the state of goods, contrary to the contract. To ensure the time limit, the
receipt of information at our company is important. If the consumer fails to inform us, the warranty claims expire within 10 days after verification of the defect. The consumer accounts
for the burden of proof for the date of verification of the defect. In case the consumer was persuaded to purchase the goods by unfound prospectus information, he has to account for the
burden of proof. If living plants are objects of purchase, and if those plants die off, are infested by vermin or otherwise damaged, the consumer accounts for the burden of proof that these matters of fact
cannot be ascribed to improper treatment of the plants after receipt.
7. If the customer cancels the contract after failed additional performance, he is not entitled to claim damages due to the defect.
If the customer claims damages after failed additional performance, the goods remain at the customer’s if this is reasonable. The compensation limits to the difference between purchase
price and value of the defective item. This does not apply if the violation of the contract was caused maliciously by us.
8. For the entrepreneur, the warranty period is one year from delivery of goods. For consumers,
the limitation period is two years from delivery of goods. This does not apply if the customer did not indicate the defect in time. ( number 6 of this contract).
9. The purchase of patent or trademarked species obliges the entrepreneur as buyer to resell the species exclusively with the original labels, which have been delivered together with the plants, and not to use the purchased roses or parts of them for reproductions and to refrain from selling those rose plants abroad. In case of resale, the entrepreneur as buyer contracts to impose those measures also on his buyers.
§ 9 Limitation of liability
1. In case of insignificantly careless breach of duty, our liability limits to the direct average damage, predictable according to the sort of goods. This applies also in case of insignificantly careless breaches of duty caused by our legal agents or assistants.
Facing entrepreneurs, we are not liable in case of insignificantly careless breach of
2. The preceding limitations of liability do not regard the claims of the customer resulting from product liability. Furthermore, the limitations of liability do not apply in case of damages caused by us to the customer’s health and body or life.
3. Claims of damages on the part of the customer because of a defect become time-barred within a year from delivery of goods. This does not apply if we account for gross negligence or in case we account for damages caused to the customer’s health and body or loss of life.
§10 Final clause
(1) The Law of the Federal German Republic applies. The clauses of the UN Law of purchase do not apply.
(2) If the customer is trader, legal person of the public right or public law separate estate, the exclusive venue for all disputes resulting from this contract is our business location. The same applies if the customer has no general place of jurisdiction in Germany or if his domicile or usual residence are not known by the time of commencement of proceedings.
(3) If single clauses of the contract with the customer including general terms and conditions should be or become entirely or partly ineffective, this is without prejudice to the validity of the other clauses. The clause, which is entirely or partly ineffective, has to be replaced by a clause whose commercial success approaches as much as possible the ineffective clause.