General terms of contract
The following terms and conditions of business and terms of delivery are to be applied exclusively for all deliveries of the seller. Differing terms, in particular purchasing terms of the buyer, will only form part of the contract, if expressly agreed upon in writing.
All offers of the seller are non-binding. Orders and all delivery contracts become binding for the seller only upon his written confirmation. Photos, pictures and model plants are considered to represent an average condition. Only if pictures, photos or other representations of plants are expressly declared to be original, the form and the quality will be binding.
Payment of plants or other items (containers, soil, etc.) is due at the time of pick up. In the case of delivery of the goods, settlement of the respective accounts has to take place at the latest 2 days before delivery. Otherwise the purchase or order will be considered to not have been made or at least the delivery date will not be legally binding. Differing arrangements have to be done in writing. Fixed prices for the goods are the prices effective in the confirmation of the order. Shipping charges are non-binding even when included in the confirmation of the order. They may vary according to shipping related changes and are only approximate prices. Costs for packaging materials and any disposal costs will be borne by the seller. Any delivered Euro palettes have to be replaced with equivalent palettes of the same type, otherwise the appointed forwarding agent is entitled to charge the palettes to the buyer. Containers have to be replaced with equal type as well or have to be immediately discharged and returned to the forwarding agent. The contract of sale is made under the assumption of continued creditworthiness of the buyer. Unsatisfactory information, a deterioration of the financial circumstances of the buyer and other circumstances, which appear after conclusion of a contract and which make it not advisable to grant a credit without security, justify the seller to resign from the contract without prior notice or else to demand payment in advance or securities.
The risk of accidental destruction or deterioration passes over to the buyer as soon as the items to be delivered are dispatched from the business facilities, the greenhouses, the warehouses etc. of the seller. This applies also in the case that carriage is paid by the seller. On frost days there is the option of heated transport. The buyer, however, has to take responsibility, in particular to avoid cold temperatures during unloading. If the dispatch of the items is delayed for a reason in the responsibility of the buyer, the risk will pass over as soon as the buyer is informed that the items are ready for delivery. The same applies, in the case that the seller exercises a retention right. Consequential costs, caused by a delivery delay in the responsibility of the buyer (e.g. costs for storage, interest, handling) will have to be borne by the buyer. Delivery of goods only over secured ways, which are passable for heavy trucks without danger. If inappropriate ways are used on instruction of the buyer, consequential damage on the ways or on vehicles have to be borne by the buyer.
Dates of delivery are binding, except for the case that it is expressly stated differently in the written confirmation of an order. In case of a binding delivery date, this will be postponed adequately in cases of force majeure (e.g. traffic delays, impediments, lack of means of transport, strikes, war). This also applies for any goods (plants etc.) that have to be procured from foreign countries. If a binding time of delivery is exceeded by more than 6 weeks, the customer is free to cancel the order after having given a further limit of 30 days of delivery time. Claims by the buyer for damages due to a delayed delivery are ruled out in all cases.
If no differing arrangements are made, plants will be packaged according to our experiences of many years. Depending on the kind of plants and on the way of delivery, this may in individual cases lead to some pressure or stress related traces. These do not justify claims against the seller, unless they are severe (severe breaking, etc.)
In case of refusal of delivery by the buyer, the seller can set an adequate deadline for the acceptance. If the buyer has not accepted the delivery within the deadline, the seller is entitled to resign from the contract and to demand compensation for nonperformance. In any case the seller can demand, even without proof of damage the rate for the freight plus 10 % of the agreed purchase price.
As far as not expressly arranged differently, all payments have to be made at such a time, that the value date on our respective accounts is at least 2 days before the delivery. Payment can also be made at pick up in cash. Other agreements have to be made in writing.
If the payments mentioned under § 8 are not made, delivery from our premises and warehouses will not proceed. We reserve the right to deliver on a substitute date or to retain the purchased items until full payment is made. The buyer has to bear possible commitment charges and the like.
Warranty claims of the buyer because of visible defects are only valid when the buyer indicates these visible defects at the latest at the time of unloading the freight. Demand for cancellation of the contract is ruled out. The buyer only has a right to demand a reduction of the purchase price. Warranty claims of the buyer based on a transplant warranty (invisible defects, e. g. not visible virus infestation or diseases) are valid only provided that - the future location of the plant has been indicated to us with light and temperature conditions - the plant has been delivered to the end user and has been planted/placed by an expert (e.g. professional gardener). Transplant warranty in this case: 3 month Are the plants placed in a greenhouse or in a salesroom for an indefinite period of time, the warranty is not applicable, because in this case the buyer is considered to be a professionally skilled person who can provide adequate care of the plants. Warranties expressly apply only for direct planting, greening and resale to end users for respective use. In the case that the respective end user hires plant care service, there is the option to make a written agreement, to prolong the time of warranty of the plants. In this case the company providing the care and the seller will carry the risk of losses at 50 % each, if not agreed differently in writing. Furthermore any damage occurring during the warranty period (e.g. failure to take root) has to be indicated timely for the seller, to provide treatment or other adequate measures. Any retardation of growth or even death of a plant, if indicated too late will not be covered by the warranty. Whether the respective plant will be replaced is finally decided by the seller, in the case that no improvement can be expected, even when taking appropriate measures. Without involvement of the seller, based on the sole decision of the buyer a replacement is not possible.
Delivered items are subject to retention of title. If a differing written agreement regarding the payment is made, respective differing agreements have to be put down in it.
The buyer waives any claims to a right of retention. The set-off of demands by the buyer is only admitted in the case that these demands are known to the buyer.
Within our company information is processed and stored electronically and we preserve the right to communicate data, which is required for a credit insurance to the company offering the insurance.
If one or more of these regulations is or becomes ineffective, this does not influence the validity of the other regulations.
For payments within Germany the laws of the Federal Republic of Germany are exclusively valid. For payments in Belgium, Belgium law applies, accordingly for all countries the law of the respective country, where payments are made. The place of commercial settling and jurisdiction is the lower district court of Munich in Germany for business transactions conducted in Germany. For business conducted in Belgium it is the lower district court of Mecheleen.