§ 1 General remarks – area of application
- These Terms and Conditions of Business are an integral part of all supply contracts, agreements and offers. They are considered acknowledged at the latest when an order is placed or a delivery accepted.
- Consumers within the meaning of these Terms and Conditions are natural persons with whom business relationships are entered into without being able to assign any commercial or self-employed occupational activity to them.
Entrepreneurs within the meaning of these Terms and Conditions are natural persons or legal entities or partnerships with legal capacity with whom business relationships are entered into and act in the exercise of a commercial or self-employed occupational activity.
Customers within the meaning of these Terms and Conditions are both consumers as well as entrepreneurs.
- We expressly deny terms of purchase, conditions of contract or other general terms and conditions of business which differ from our terms and conditions of purchase and delivery, are opposed to them or are intended to supplement them; even if we know of these differing terms and conditions, they will not be a part of the contract unless we expressly consent to their application in writing.
§ 2 Conclusion of contract
- Our offers are non-binding in accordance with our availability.
- When customers order goods, they thereby bindingly declare their intent to acquire the goods ordered.
- We are entitled to accept the contract offer contained within the order within two weeks of receipt. The acceptance can either be declared in writing or by delivering the goods to the customer.
- If consumers order the goods electronically, we shall immediately confirm the receipt of the order. The confirmation of receipt does not constitute a binding acceptance of the order. The confirmation of receipt can be done with the declaration of acceptance. The contract is concluded subject to correct and punctual supply to ourselves by our supplier. This only applies to cases in which we are not at fault for failure to make delivery, in particular, when we have concluded a congruent hedging transaction with our supplier. Customers shall be informed of non-availability of the service. The service in return, if already rendered, shall be refunded without delay.
- If a consumer orders the goods electronically, we shall save the text of the contract and send it to the customer by e-mail upon request along with these General Terms and Conditions.
§ 3 Prices and terms of payment
- All prices are valid at the point of sale, without packaging and transport, in euros plus VAT. In the event of a new issue of the catalog / price list, the old prices shall lose their validity. In cases of sale by dispatch, a flat fee for shipping and handling of € 20.00 must be added to the purchase price.
- Foreign currency shall be converted in accordance with the official exchange rate of the respective currency noted by the German Federal Bank on the date of billing, unless the bill is issued in this currency.
- If the plants are chosen personally on our premises, the list prices do not apply.
- We reserve the right to execute orders COD.
- Customers incur no additional expense for using means of telecommunication to order.
- Customers shall undertake to pay the purchase price after receipt of the goods at the latest within thirty days of the billing date. When this period has expired, the customer shall be in default of payment. Consumers must pay interest on the debt during the time of default in the amount of 5 % above the basic interest rate.
Entrepreneurs must pay interest on the debt during the time of default in the amount of 8 % above the basic interest rate. We reserve the right to establish and claim higher damages caused by delay against entrepreneurs.
If payment is made within fourteen days, we shall grant a 2 % discount on the invoice amount if the customer has completely fulfilled all payment obligations from prior deliveries and no other agreements in this regard are made.
- Consumers only have a right of set-off if their counterclaims have been determined without further legal recourse or acknowledged by ourselves. The assertion of a right of retention is only permissible if based on circumstances arising from the same delivery.
In commercial legal relations, the exercise of a right to refuse service or a right of retention by our entrepreneur customers is excluded.
- Checks and bills of exchange are only accepted for processing subject to encashment. Expenses and costs arising hereby shall be borne by the purchaser.
- If a substantial deterioration should occur in the pecuniary circumstances of our customers, then we shall be entitled to make the rendering of our contractual services dependent on advance payment of the agreed remuneration or on the provision of an appropriate security. In the event that our customers do not take action, we shall be entitled to withdraw from the contract and demand damage compensation after setting a corresponding period of grace.
§ 4 Transfer of risk, shipment and packaging
- If the purchaser is an entrepreneur, the risk of accidental loss and accidental degradation shall transfer to the purchaser at delivery or, in cases of sale by dispatch, when the goods are delivered to the shipping agent, freight carrier or other person or agency specified to carry out the shipment.
- If the purchaser is a consumer, the risk of accidental loss or accidental degradation of the purchased goods shall also transfer to the purchaser when the goods are delivered, even in cases of sale by dispatch.
- The goods shall be considered as having been delivered when the purchaser delays in accepting the goods.
- In cases of additional purchase by us, the seller must execute the packaging properly and carefully.
- Open carloads must be covered. The individual delivery items must be clearly marked.
- Transport insurance will only be taken out at the express wish and at the expense of our customers.
- The cost price shall be charged for non-returnable packages. Returnable packages (for example, lattice boxes, nursery pallets) remain in our ownership and must be returned at the expense of our customer.
- Costs of packaging and transport, as well as costs of cartage, can be billed subsequently.
- Delivery by truck can only be made on clearly passable roads.
§ 5 Obligation to supply
- In the event of weather catastrophes, such as drought, extreme cold, hail or other unforeseen circumstances for which we are not at fault, such as epidemics, strike, lockout, breakdowns of any kind, war, warlike events, currency changes or interventions by the authorities, the delivery period shall be extended for the duration of the impediment. If the stated circumstances make delivery impossible, then we shall be released from our duty to deliver. In these cases, the customer cannot claim damage compensation.
- Fixed delivery deadlines are only binding on us if confirmed in writing.
- We expressly reserve the right to make partial deliveries.
§ 6 Dimensions and samples
- All dimensions are approximate. Deviations of 10 % above or below are permissible.
- Samples merely illustrate the average condition. Not all plants must turn out like the sample.
§ 7 Reservation of ownership
- In contracts with consumers, we reserve ownership of the goods until the purchase price has been paid in full. In the case of contracts with entrepreneurs, we reserve ownership of the goods until all outstanding claims from a current business relationship have been settled, including accessory claims. The reservation of ownership shall also remain in effect if certain of our claims are taken up in a current invoice and the balance was drawn and acknowledged.
- Our ownership of the goods subject to reservation of ownership is not lost if the entrepreneur plants the supplied plants on the entrepreneur’s own or others’ property until resale. The goods subject to reservation of ownership must be stored or planted apart from other plants, and marked in such a way that they can be identified as coming from us. The customer is obligated to treat the goods subject to reservation of ownership with care free of charge. This includes in particular proper storage, planting, fertilizing and watering.
- The customer is obligated to notify us without delay if third parties gain access to the goods, as in the event of garnishment, as well as of any damages or destruction of the goods, indicating the name and address of the garnisher. The customer must notify us without delay of any change of ownership of the goods, as well as any change in the customer’s own place of residence.
- We are entitled to withdraw from the contract and demand the return of the goods if the customer acts in breach of contract, in particular in cases of default on payment or violation of an obligation pursuant to Numbers 2 and 3 of these Terms.
- The entrepreneur is entitled to resell the goods in the ordinary course of business. The entrepreneur hereby transfers to us any claims to which the purchaser in this resale is entitled, including any ancillary rights and current account balance claims. We accept the transfer. After the transfer, the entrepreneur shall be entitled to collect the claim. We reserve the right to collect the claim ourselves as soon as the entrepreneur does not properly fulfill the obligation to pay and defaults in payment.
- The entrepreneur shall always process the goods by our order and for our account. If they are combined with goods not belonging to us, then we shall acquire co-ownership of the combined goods in the proportion of the value of the goods delivered by us to the other goods.
§ 8 Guarantee and warranty
- No guarantee for the taking roots of the plants shall be provided. If the customer expressly demands a guarantee of taking roots, then a special amount can be charged for this. A taking roots guarantee which has been granted covers the duration of one year from the time of delivery and assumes that the customer has given the plants the proper treatment for this type of plant. This includes in particular proper planting depth, fertilization and watering. Cases of force majeure, in particular drought, extreme cold, pest infestation, etc., are not covered by this guarantee. The taking roots guarantee is not a guarantee in the legal sense.
- A warranty for the varietal purity is only provided upon express request. In the case of fruit plants, the warranty of the varietal purity and the required documents shall remain in effect until the fifth year from the day of delivery. The warranty for berry fruit, roses and other woody plants only runs until the end of the second year from the day of delivery. No warranty shall be provided for the varietal purity of subsequent generations. For rootstocks and seedlings, we offer a guarantee of the varietal purity only for one year from the date of delivery.
- If the purchaser is an entrepreneur, we shall first offer a warranty for defects in the goods at our own discretion by subsequent improvement or replacement delivery.
- Purchasers who are consumers shall first have a choice of supplementary performance by means of subsequent improvement or replacement delivery. We shall be entitled, however, to refuse the kind of supplementary performance chosen if it is only possible at unreasonable cost and the other kind of supplementary performance poses no substantial disadvantages for the consumer.
- If the supplementary performance fails, then the customer can always demand a lowering of the remuneration (reduction) or cancellation of the contract (rescission).
- In cases of insignificant breaches of contract, in particular minor defects, however, the customer shall have no right of cancellation.
- Entrepreneurs must notify us in writing of obvious defects within a period of 8 days from receipt of the goods; otherwise the assertion of warranty claims shall be excluded. Punctual dispatch of the notice shall suffice to meet the deadline. The entrepreneur shall bear the full burden of proof for meeting all eligibility criteria, in particular for the defect itself, for the time of detection of the defect and for the punctuality of the notice of defect. Consumers must notify us in writing of obvious defects within a period of two months from the time at which the condition of the goods constituting breach of contract was discovered. Compliance with this deadline shall be based on our receipt of the notice. If the consumer fails thus to notify us, the warranty shall terminate two months after the defect is discovered. The consumer shall bear the full burden of proof for the time of detection of the defect. If the consumer was induced to purchase the item by incorrect statements in a brochure, the consumer shall bear the burden of proof to this extent. If the item purchased is a living plant which dies, becomes infected by pests or otherwise sickens, the consumer must bear the burden of proving that these circumstances were not caused by improper treatment of the plant after it was handed over.
- If the customer chooses to withdraw from the contract due to lack of title or material defect following a failed supplementary performance, the customer shall have no claim to damage compensation due to the defect aside from this. If the customer chooses damage compensation following failed supplementary performance, the goods shall remain with the customer if this is not unreasonable for the customer. The damage compensation shall be limited to the difference between the purchase price and the value of the defective item. This shall not apply if we have fraudulently caused the breach of contract.
- For entrepreneurs, the warranty period is one year from the delivery date of the goods. For consumers, the limitation period is two years from the delivery date of the goods. This shall not apply if the customer has not notified us of the defect in due time (Number 6 of these Terms).
- The purchase of rose varieties protected by patent and plant variety rights, as well as those whose names are protected by trade mark, the entrepreneur as purchaser shall undertake to resell the varieties exclusively with the original labels supplied with the plants, as well as refrain from using the acquired rose plants or parts thereof for propagation and to refrain from any sale of such rose plants abroad. The entrepreneur as purchaser is required in cases of resale to impose these measures on the entrepreneur’s own buyers as well.
§ 9 Limitations of liability
- For breaches of duty due to minor negligence, our liability is limited to the average direct damage predictable for the type of item and standard for the contract. This also applies to breaches of duty due to minor negligence caused by our legal representatives or vicarious agents. We shall assume no liability toward entrepreneurs for breach of inessential contractual duties due to minor negligence.
- The aforementioned limitations of liability do not affect the customer’s claims from product liability. In addition, the limitations of liability do not apply to the customer’s claims due to bodily injury, damage to health, or loss of life of the customer for which we are responsible.
- The customer’s claims to damage compensation due to a defect expire one year from the date of delivery of the item. This does not apply if we can be accused of gross negligence or if we have caused bodily injury, damage to health, or loss of life of the customer.
§ 10 Right of cancellation and return
- Distance contract with cancellation clause
- The consumer has the right to cancel customer’s declaration of intent to conclude the contract within two weeks of receipt of the goods unless the goods are living plants. The cancellation need not contain a reason and must be declared in text form or by returning the goods to the seller; punctual dispatch of the cancellation shall suffice to meet the deadline.
- The consumer is obligated to return the goods when exercising the right of cancellation if the goods can be sent in a parcel. The cost of the return shipment shall be borne by the consumer exercising the right of cancellation up to an order value of € 40 unless the goods delivered did not conform to the goods ordered. In cases where the order value is more than € 40, the consumer must not bear the cost of the return shipment.
- The consumer must replace the value of deterioration due to deterioration of the goods caused by proper use. The consumer can carefully and cautiously inspect the goods. The consumer must bear the loss in value caused by use which goes beyond a mere inspection and which makes it impossible to sell the goods as “new”.
§ 11 Final provisions
- The law of the Federal Republic of Germany applies. The provisions of the UN Convention on Contracts for the International Sale of Goods do no apply.
- If the customer is a businessperson, corporate body under public law or a special fund under public law, the exclusive legal venue for all disputes arising from this contract shall be our place of business. The same applies if the customer has no general legal venue in Germany, or if the customer’s place of residence or habitual abode at the time of the institution of legal proceedings are not known.
- Should specific provisions of the contract with the customer, including these General Terms and Conditions of Business, be or become ineffective in full or in part, then this shall not affect the validity of the remaining provisions. The wholly or partly ineffective provision shall be replaced by a provision whose commercial success approximates as closely as possible that of the ineffective provision.