| 1. Scope
(1) Our terms and conditions of sale apply only to companies
within the meaning of Section 14 BGB (German Civil Code).
They also apply to all future business conducted with Customer.
(2) Our terms and conditions of sale apply exclusively. Any
terms and conditions of Customer that are at variance with
our own terms and conditions shall not be accepted, not even
by unconditional execution of contract.
(3) All agreements concluded between ourselves and Customer
for the purpose of fulfilling this contract must be set down
in writing in this contract.
(4) Unless otherwise stipulated in these terms and conditions
of sale, the terms and definitions in Incoterms 2000 shall
apply.
2. Conclusion of contract
(1) Our offers are non-binding. Any descriptions and details
in offers, brochures and other information material are likewise
non-binding at first.
(2) We reserve copyright and rights of use in respect of figures,
drawings and cost calculations.
(3) Any disclosures within the meaning of sub-section 1
above and in any public statements on our part (Section 434
I 3 BGB) shall be incorporated by reference in the description
of services only if explicit reference is made to them in
this contract.
3. Prices, terms of payment
(1) Unless otherwise agreed, our prices are ‘ex works’
and exclude packaging.
(2) We provide the pallets, palletinos, QP trays and CC containers
(including shelves and extensions) required for transport
on a loan basis. They must be properly kept until returned.
If CC containers are not exchanged immediately on delivery,
we reserve the right to charge rent at standard rates. In
the event of damage or loss, we have the right to charge the
currently applicable replacement costs for: pallets, palletinos,
QP trays, CC containers, shelves and extensions.
(3) Costs for non-returnable packaging, transport and insurance
(e.g. for damage in transit, through decay, etc.) shall be
borne by Customer.
(4) Our prices do not include statutory value added tax; the
latter is separately charged at the rate applicable on the
invoice date.
(5) The purchase price must be paid within 30 working days
after receipt of the merchandise and invoice, either in cash
or by bank giro transfer, and without deductions. Payments
are deemed to be made on the date on which we can freely dispose
of the amount. A discount may be deducted if the amount is
at our disposal within ten days after receipt of invoice (2%
for raw materials and finished goods, 3% for cuttings, young
plant plugs and half-grown plants).
(6) Credits against bills or cheques are subject to receipt
of funds, the value date being the day on which we can dispose
of the countervalue.
(7) If the payment term is exceeded, interest shall be payable
at the statutory rate without a prior reminder (8% above the
discount rate of the ECB).
(8) Customer has a right of set-off or retention only on condition
that the respective claims or receivables are undisputed or
established as final by a court of law.
4. Delivery, duties to assist
(1) The extent of our duty to supply derives solely from this
contract. We may substitute in the customary manner for varieties
and sizes that are sold out. Contracts for rooted cuttings
are subject to the proviso that roots are grown. If our capacities
to deliver are restricted by force majeure, such as frost,
storm, accident or flood damage, or by other unusual weather
conditions, we are released from our obligation to supply.
The same principle shall also apply if there are shortfalls
in the propagation and cultivation of cuttings. We shall notify
Customer of such circumstances as soon as they are apparent.
We have the right, but are not obliged to supply substitute
products of equal value. Customer has no right to claim damages.
(2) If, after conclusion of contract, it transpires that Customer
does not provide sufficient guarantee of solvency and our
claim to payment is jeopardised, we have the right to refuse
delivery until Customer has rendered payment or provided collateral
for such payment. If the payment is not made or collateral
is not provided within 12 working days after a request to
that effect, we have the right to withdraw from the contract.
(3) If Customer defaults on call-off, acceptance or collection,
or if a delay in dispatch or delivery is the fault of Customer,
we have the right to charge additional plant care and storage
costs without prejudice to any further claims we may have.
We may place the merchandise in interim cold storage. We bear
no liability for damage and disease caused by over-maturity
or excessively long cold storage if the latter is due to default
on the part of the Customer.
5. Delays in delivery
(1) If the agreed deadline cannot be met due to circumstances
beyond our control, the delivery period shall be extended
accordingly. In such cases we shall inform Customer promptly.
Either party may withdraw from the contract if the circumstances
preventing delivery continue to exist one month after the
agreed delivery period has expired. No further claims may
be asserted if, through no fault of our own, the deadline
for delivery is not met.
(2) If Customer incurs damages in the event of a default in
delivery, Customer shall have to right to demand lump-sum
compensation amounting to 3% of the delivery value for each
full week of delay, but at most 9% of the delivery value.
Customer may also set us, in writing, a reasonable extension
of deadline that must amount to at least 15 working days.
Customer has the right to withdraw from the contract or to
demand compensation instead of performance once a reasonable
extension of deadline has expired to no avail. Liability for
damages is limited to 50% of the damage incurred, and may
not exceed the value of the order.
(3) Sub-section 2 above shall not apply if default is due
to wilful action, gross negligence or to a material breach
of contract. Nor shall it apply if a sale with absolutely
fixed date was agreed.
6. Place of performance, passing of risk
The place of performance for reciprocal duties is D-28870
Ottersberg. Risk passes the Customer when loading of the merchandise
onto the means of transport begins, unless other terms have
been agreed. |
|
| 7. Defects
(1) Customer has the statutory duty, pursuant to Section 377
HGB (German Commercial Code), to inspect the merchandise and
notify us of any defects. Customer shall notify us immediately
of any obvious defects. Other defects discovered after random
sampling must be notified to us without delay, at the latest
within three days after receipt of the merchandise. Hidden
defects (e.g. mixing of plant varieties) must be notified
to us as soon as they are discovered. Customer must also submit
samples of infested goods to the Pflanzenschutzamt (Plant
Protection Office) for inspection and appraisal.
(2) Customer may not derive any additional rights from defects
which do not impair, or only to a negligible extent, the value
of the merchandise or its suitability for the specific use
as evident to us.
(3) If the merchandise has evident defects on the passing
of risk, we have the right and duty to remedy such defects.
Defects shall be remedied at our own discretion either by
rectification or replacement delivery, provided this is reasonable
for the Customer. The costs for remedy, in particular the
transport, travel, labour and material costs, shall be borne
by us. Section 439 (3) BGB shall continue to apply.
(4) If we fail to remedy the defect, or fail to remedy the
defect within a reasonable period as set by Customer, or if
remedy of defect is refused by or is unacceptable for Customer,
the latter has the right, at his own discretion, to withdraw
from the contract, to demand an appropriate reduction in the
purchase price or, within the limits defined in the following
sub-sections, to demand compensation instead of performance.
(5) If a defect results in damages, we bear liability in accordance
with statutory regulations in the case of personal injury,
or if the damages come under the German Product Liability
Act (ProdHaftG), or if the damages are due to wilful action
or gross negligence on our part.
(6) If the damages are the result of a culpable and material
breach of contract on our part, we shall bear liability only
for the damages typically associated with this kind of contract.
(7) No further-reaching contractual or tortious claims by
Customer shall be accepted. For this reason, we shall not
accept liability for damages that are not caused to the actual
object of purchase; nor shall we accept liability for loss
of profits or other pecuniary losses incurred by Customer.
(8) The provisions in sub-sections 2 – 4 above
shall be without prejudice to Section 478 BGB.
(9) Claims deriving from sub-sections 1 – 7
above shall be barred by limitation one year after delivery
of the merchandise, subject to the provisions of Section 438
(1) No. 2 and Section 439 BGB. Accordingly, the statutory
right to withdraw or reduce the purchase price does not apply.
8. Other liability for damages
(1) The provisions in Section 7, sub-sections 5 – 7
above shall also apply to damages claims based on other breaches
of duty.
(2) In the event of a precontractual obligation being breached,
or performance being hindered by factors existing at conclusion
of contract (Sections 311 II, 311a BGB), our liability
to pay damages is limited to placing the Buyer in the position
which would have prevailed if he had not placed his faith
in the validity of the business (negative interest).
(3) The provisions in Section 7, sub-sections 5 – 7
shall apply accordingly to our extra-contractual liability.
(4) If our liability is excluded or restricted, this shall
apply also to the personal liability of our salaried employees,
blue-collar workers, co-workers, representatives and vicarious
agents.
9. Retention of title
(1) The merchandise supplied shall remain in our ownership
pending full settlement of all claims against Customer that
derive from the business relationship. This retention of title
shall also apply if claims are included in a current invoice
and the balance of account has been drawn and accepted. Our
retention of title and the collateral to which we are entitled
shall remain in effect until full release of any contingent
liabilities (e.g. liability as the drawer of a bill when payment
is made using the cheque-bill procedure) that we have assumed.
(2) Customer has the right to sell or process the merchandise
in the normal course of business. Any processing is done on
our behalf at no obligation to ourselves. If the reserved
title goods are processed with other goods, we acquire a proportionate
co-ownership share according to the ratio between the value
of the reserved title goods (gross invoice value including
secondary costs and taxes) and the value of the new item.
(3) Customer hereby assigns to us all claims to payment that
he acquires from reselling to his own customers or to third
parties. Despite this assignment, Customer remains authorised
to collect receivables from his customers. The latter provision
is without prejudice to our own right to collect receivables;
however, we shall not invoke this right as long as Customer
honours his duty to pay and his other duties. At our request,
Customer shall: provide us with details of assigned receivables
and the respective debtors, as well as all details required
to collect the receivables, surrender to us the associated
documents and inform the debtors of the assignment.
(4) If Customer commits a breach of contract, in particular
if he defaults on payment, we are entitled to withdraw from
the contract and take back the merchandise. For the latter
purpose, Customer hereby grants us irrevocable permission
to enter his business or warehousing premising without hindrance
and to take the merchandise.
(5) If and for as long as our retention of title applies,
Customer may neither pledge nor transfer ownership of the
merchandise, or of items made with same, without our consent.
(6) In the event of any levies of execution or other seizures
by third parties, Customer must inform us thereof immediately
and in writing. Customer is not permitted to enter any agreements
with his own customers that might impair our rights.
(7) We agree to release collateral accruing to us, at the
request of Customer and at our own discretion, if the value
that can be realised with the collateral exceeds by more than
20% the debts being secured, or its nominal value exceeds
the debts by more than 50%.
10. General provisions
(1) The rights of Customer deriving from this contract are
non-transferrable.
(2) If any provisions of this contract are invalid, this shall
not affect the remainder of the contract.
(3) If Customer is a registered business, the place of jurisdiction
for all disputes with him is our own place of business. The
place of jurisdiction is not confined to the latter.
(4) The laws of Germany shall govern exclusively.
Status: November 2005 |
|
