General Terms and Conditions of Sale and Delivery (Ts & Cs)

§1 General – scope of application, definition of terms

1. These terms and con­di­tions of sale and deliv­ery form part of all deliv­ery con­tracts, agree­ments and quo­ta­tions. They shall be deemed to be accept­ed upon place­ment of an order or accep­tance of deliv­ery at the latest.
2. Con­sumers with­in the mean­ing of these Gen­er­al Terms and Con­di­tions of Sale and Deliv­ery are nat­ur­al per­sons who have con­clud­ed a legal trans­ac­tion for pur­pos­es that do not pre­dom­i­nant­ly con­cern their com­mer­cial or self-employed occu­pa­tion­al activ­i­ty. Busi­ness enter­pris­es with­in the mean­ing of these Gen­er­al Terms and Con­di­tions of Sale and Deliv­ery are nat­ur­al per­sons or legal enti­ties that, upon con­clu­sion of a legal trans­ac­tion, are per­form­ing a com­mer­cial or self-employed occu­pa­tion­al activ­i­ty. Cus­tomers with­in the mean­ing of these Gen­er­al Terms and Con­di­tions of Sale and Deliv­ery can be both con­sumers and busi­ness enterprises.
3. We explic­it­ly reject terms and con­di­tions of pur­chase or order and oth­er gen­er­al terms and con­di­tions of busi­ness that devi­ate from our Gen­er­al Terms and Con­di­tions of Sale and Deliv­ery, con­tra­dict them or sup­ple­ment them. Even if we acknowl­edge such devi­at­ing terms and con­di­tions they shall not become an inte­gral part of the con­tract unless we explic­it­ly con­sent to their valid­i­ty in writing.

§2 Conclusion of the contract, reservation in the event of not receiving goods ourselves

1. All quo­ta­tions issued by us shall be sub­ject to change.
2. Upon order­ing goods the cus­tomer bind­ing­ly declares that he wish­es to pur­chase such goods.
3. The con­tract shall only be con­clud­ed once we accept the customer’s order in writ­ten form (e.g. by let­ter, fax or e‑mail) or deliv­er the goods to the customer.
4. Should we not have declared accep­tance of the customer’s order with­in 14 days or per­formed deliv­ery, the cus­tomer shall not be bound to his order.
5. Sub­sidiary agree­ments shall only become effec­tive if they are con­firmed in writ­ten form.
6. Should we not receive deliv­er­ies our­selves, despite hav­ing placed appro­pri­ate iden­ti­cal orders with reli­able sup­pli­ers, we shall be released from our oblig­a­tion to per­form and shall be enti­tled to with­draw from the con­tract. We shall be oblig­ed to imme­di­ate­ly noti­fy the order­ing par­ty of the non-avail­abil­i­ty of the goods or ser­vices and under­take to prompt­ly reim­burse the order­ing par­ty for all ser­vices already pro­vid­ed in return.

§3 Prices and terms of payment

1. All prices are quot­ed in euro. Unless oth­er­wise stat­ed prices are quot­ed ex point of sale and exclude pack­ag­ing and transportation.
2. For­eign cur­ren­cies shall be con­vert­ed into euro at the Ger­man Bundesbank’s offi­cial sell­ing rate for the respec­tive cur­ren­cy on the day of issue of the invoice, unless the invoice has been issued in the respec­tive for­eign currency.
3. We reserve the right to request cash on deliv­ery for goods that are post­ed upon cus­tomer request, pro­vid­ed the cus­tomer is a busi­ness enter­prise with­in the mean­ing of these Ts&Cs.
4. Pay­ment shall become due upon receipt of the goods. Pay­ment shall be made at the time of pur­chase in the retail outlet.
5. Pay­ment default shall occur fol­low­ing a peri­od of 20 days after receipt of the invoice and after receipt of the goods. The cus­tomer shall not be in arrears if the goods and/or ser­vices are not delivered/provided as a result of a cir­cum­stance for which the cus­tomer is not responsible.

§4 Prohibition of set-off, limitation of the right of retention, right to refuse performance

1. The cus­tomer shall only be enti­tled to rights of set-off if his coun­ter­claims are legal­ly estab­lished, due for judge­ment, uncon­test­ed or recog­nised by us.
2. The cus­tomer shall only be enti­tled to exer­cise his right of reten­tion where his coun­ter­claim is based on the same con­trac­tu­al relationship.
3. If, fol­low­ing con­clu­sion of the con­tract with the cus­tomer, is should become appar­ent that our claim to pay­ment is at risk due to the customer’s inabil­i­ty to pay, we shall be enti­tled to refuse to deliver/perform the goods/service incum­bent upon us. This right to refuse per­for­mance shall be inap­plic­a­ble if the cus­tomer makes the pay­ment or has pro­vid­ed com­men­su­rate secu­ri­ty. We shall be enti­tled to set an appro­pri­ate peri­od with­in which the cus­tomer shall make pay­ment or pro­vide secu­ri­ty. Should this peri­od expire with­out pay­ment being made, we shall be enti­tled to with­draw from the contract.

§5 Transfer of risk, transport, shipping and packaging

1. If the cus­tomer is a busi­ness enter­prise, the risk of acci­den­tal loss and acci­den­tal dete­ri­o­ra­tion of the goods shall pass to the cus­tomer at the time the goods are hand­ed over and, for mail orders, upon deliv­ery of the goods to the freight for­warder, the car­ri­er, or oth­er per­sons or estab­lish­ments appoint­ed to per­form the delivery.
2. If the cus­tomer is a con­sumer, the risk of acci­den­tal loss and acci­den­tal dete­ri­o­ra­tion of the sold goods shall only pass to the cus­tomer at the time the goods are hand­ed over or, in the case of mail orders, when the goods are delivered.
3. If the cus­tomer delays accep­tance of the goods they shall still be deemed to have been hand­ed over.
4. Trans­port insur­ance cov­er will only be tak­en out upon the express wish of and at the expense of the customer.
5. Non-return­able pack­ag­ing will be invoiced at cost price. Reusable pack­ag­ing (e.g. stack­ing mesh pal­lets, tree nurs­ery pal­lets) remain our prop­er­ty and must be returned at the cus­tomers’ expense. Cus­tomers who are con­sumers will be informed of any addi­tion­al costs for this before the con­tract is concluded.
6. Deliv­er­ies can only be made via freely acces­si­ble, hard-sur­faced roads and unload­ing is not included.

§6 Delivery obligations, temporary and permanent obstacles to performance/delivery

1. In the event of weath­er cat­a­stro­phes such as drought, frost or hail or oth­er unfore­see­able cir­cum­stances for which we are not respon­si­ble, such as ter­ror attacks, epi­demics, strikes, lock­outs, war or war-like events, the deliv­ery peri­od shall be extend­ed by the dura­tion of such events. Strikes and lock­outs at our own com­pa­ny shall not be cov­ered by the above clause. Should the obsta­cle to delivery/service pro­vi­sion be not just a tem­po­rary event, we shall be released from our sup­ply oblig­a­tion in the event that: 
   • deliv­ery is ren­dered impos­si­ble by the stat­ed cir­cum­stances (cf. § 275 par. 1 BGB (Ger­man Civ­il Code)).
   • the ser­vice or deliv­ery requires of us a lev­el of expen­di­ture which, tak­ing into con­sid­er­a­tion the oblig­a­tions incum­bent upon us and the prin­ci­ple of good faith, is man­i­fest­ly dis­pro­por­tion­ate to the customer’s inter­est in ful­fil­ment. When deter­min­ing what may rea­son­ably be required of us, the ques­tion of whether we are respon­si­ble for the obsta­cle to delivery/service pro­vi­sion must also be tak­en into consideration.
   • we are to deliver/perform the ser­vice our­selves and, after weigh­ing up the obsta­cle to delivery/service pro­vi­sion with the customer’s inter­est in ful­fil­ment, this can­not rea­son­ably be required of us.
2. Deliv­ery dates shall only be bind­ing upon us if they are con­firmed in writ­ten form.
3. We express­ly reserve the right to make part deliveries.

$7 Dimensions and samples

1. All dimen­sions are approx­i­mate. Devi­a­tions in the order of ±10% shall be per­mit­ted. For plants, the qual­i­ty reg­u­la­tions for plants from tree nurs­eries issued by the Forschungs­ge­sellschaft Land­schaft­sen­twick­lung Land­schafts­bau e.V. (FLL) (Land­scape Devel­op­ment and Land­scape Con­struc­tion Research Soci­ety), as enclosed with these Ts&Cs, shall apply.
2. Sam­ples are indica­tive of aver­age qual­i­ty only. Not all plants will exhib­it exact­ly the same qual­i­ties as the sample.

§8 Retention of title

1. For con­tracts with con­sumers, we retain the title to the goods until com­plete pay­ment of the pur­chase price has been received. For con­tracts with busi­ness enter­pris­es, we retain the title to the goods until all accounts receiv­able from an on-going busi­ness rela­tion­ship, includ­ing ancil­lary claims, have been set­tled. The reten­tion of title shall also remain effec­tive if indi­vid­ual claims are includ­ed in an open account and the bal­ance has been deter­mined and acknowledged.
2. Our own­er­ship of the goods sub­ject to reten­tion of title shall not be lost if busi­ness enter­pris­es act­ing as cus­tomers set down or plant the deliv­ered plants on their own or on a third party’s prop­er­ty until such time that the goods are resold. The goods sub­ject to reten­tion of title shall be stored, set down, or plant­ed sep­a­rate­ly from oth­er plants and shall be marked such that it is clear that they orig­i­nate from us. The cus­tomer under­takes to treat the goods sub­ject to reten­tion of title with care and free of charge. This includes cor­rect stor­age, plant­i­ng, fer­til­i­sa­tion, and irri­ga­tion in particular.
3. The cus­tomer under­takes to imme­di­ate­ly inform us should a third par­ty gain access to the goods, for instance in the event of seizure, of any dam­age to the goods or in the event the goods are destroyed, giv­ing the name and address of the attach­ing cred­i­tor. The cus­tomer shall noti­fy us imme­di­ate­ly of a change in own­er­ship of the goods or a change of address.
4. We shall be enti­tled to with­draw from the con­tract and demand the return of the goods if the cus­tomer is in breach of con­tract, in par­tic­u­lar in the event of pay­ment default or should there be breach of an oblig­a­tion as set forth in claus­es 2 and 3 of this provision.
5. The cus­tomer shall be enti­tled to re-sell the goods sup­plied by us in the nor­mal course of busi­ness. It is not per­mit­ted to make oth­er dis­po­si­tions, in par­tic­u­lar pledges, nor offer the goods as col­lat­er­al. If the goods sub­ject to reten­tion of title are not paid for imme­di­ate­ly by third par­ty buy­ers when resold, the cus­tomer under­takes to resell under reten­tion of title only. Autho­ri­sa­tion to resell the goods sub­ject to reten­tion of title shall imme­di­ate­ly become invalid if the cus­tomer sus­pends pay­ment or defaults in pay­ment to us.
6. The cus­tomer here­with assigns to us all claims includ­ing secu­ri­ties and ancil­lary rights that accrue to it against the end cus­tomer or third par­ties with or in con­nec­tion with the resale of goods sub­ject to reten­tion of title. We accept such assign­ment. The cus­tomer may not make any agree­ment with its buy­ers which in any way exclude or neg­a­tive­ly affect our rights or inval­i­date an advance assign­ment of the claim. In the event the goods sub­ject to reten­tion of title are sold togeth­er with oth­er items, the claim against the third-par­ty buy­er, amount­ing to the deliv­ery price agreed upon between us and the cus­tomer, shall be deemed to be assigned should it be impos­si­ble to deter­mine the amounts for the indi­vid­ual goods from the invoice.
7. The cus­tomer shall be enti­tled to col­lect the claims assigned to us until we revoke that enti­tle­ment, which we may do at any time. Upon request by us, the cus­tomer under­takes to pro­vide us with the infor­ma­tion and doc­u­ments nec­es­sary for col­lect­ing the assigned claims and – where we do not do this our­selves – to imme­di­ate­ly noti­fy its cus­tomers of the assign­ment to us.
8. If the cus­tomer has already assigned claims from the resale of the goods sub­ject to reten­tion of title, in par­tic­u­lar as a result of non-recourse or recourse fac­tor­ing, or has made oth­er agree­ments on the basis of which our cur­rent or future liens could be neg­a­tive­ly affect­ed in accor­dance with this sec­tion, he shall inform us there­of imme­di­ate­ly. In the case of recourse fac­tor­ing, we shall be enti­tled to with­draw from the con­tract and request that goods already deliv­ered be returned; the same shall also apply in the case of non-recourse fac­tor­ing if, in accor­dance with the con­tract with the fac­tor­ing com­pa­ny, the cus­tomer can­not freely con­trol the pur­chase price of the claim.
9. If the val­ue of exist­ing secu­ri­ties – pur­suant to the above pro­vi­sions – pro­vid­ed to us exceeds our secured claims by more than 10% over­all, we shall, at the request of the cus­tomer and at our dis­cre­tion, be oblig­at­ed to release the securities.
10. The goods sub­ject to reten­tion of title may be processed, mixed and/or com­bined in accor­dance with § 950 BGB (Ger­man Civ­il Code) but with­out any oblig­a­tion on our part deriv­ing there­from. If the goods sub­ject to reten­tion of title are processed, mixed or insep­a­ra­bly com­bined with oth­er items not belong­ing to us, we shall then acquire co-own­er­ship of the new item in pro­por­tion to the ratio of the invoice val­ue of our goods to the invoice val­ue of the oth­er processed or com­bined items. If our goods are com­bined and insep­a­ra­bly mixed or com­bined with oth­er mov­able items to form a uni­fied item that is to be con­sid­ered as the main item, the cus­tomer shall already at this time assign co-own­er­ship to us in pro­por­tion to the ratio of co-own­er­ship. The cus­tomer shall store the ful­ly-owned or joint­ly-owned prop­er­ty for us free of charge. The ensu­ing rights of co-own­er­ship shall be con­sid­ered to be goods sub­ject to reten­tion of title. At our request, the cus­tomer under­takes all times to pro­vide us with all of the infor­ma­tion required to pur­sue our rights of own­er­ship or of co-ownership.

§9 Warranties

No war­ran­ty of any type is giv­en. Should the cus­tomer express­ly demand a war­ran­ty for plant growth or a guar­an­tee of vari­etal iden­ti­ty, this will require a spe­cial agree­ment to be reached between us and the cus­tomer which reg­u­lates fur­ther details.

§10 Material defect warranty, installation and removal costs, obligation to notify obvious defects,

lim­i­ta­tion periods

1. If the buy­er is a busi­ness enter­prise, we shall, at our own dis­cre­tion, be enti­tled to sub­se­quent ful­fil­ment, either to rec­ti­fy the defect or make a replace­ment deliv­ery (deliv­ery of non-defec­tive goods).
2. If the buy­er is a con­sumer, then he shall, in the event of a defect, be enti­tled to decide whether sub­se­quent ful­fil­ment should take the form of rec­ti­fy­ing the defect or a replace­ment deliv­ery. We are, how­ev­er, enti­tled to reject the cho­sen form of sub­se­quent ful­fil­ment, if it is only pos­si­ble at dis­pro­por­tion­ate­ly high cost and if the alter­na­tive method of sub­se­quent ful­fil­ment entails no sub­stan­tial dis­ad­van­tages for the consumer.
3. If the sub­se­quent ful­fil­ment fails, the cus­tomer may, at his dis­cre­tion, choose to reduce the fee or with­draw from the con­tract. In the event of a minor infringe­ment of an oblig­a­tion, par­tic­u­lar­ly for mar­gin­al defects, the cus­tomer shall not be enti­tled to with­draw from the contract.
4. The cus­tomer shall fur­ther­more be enti­tled to with­draw from the con­tract in the fol­low­ing cases: 
   • if we refuse the type of sup­ple­men­tary per­for­mance on the grounds of dis­pro­por­tion­ate­ly high costs,
   • if sup­ple­men­tary per­for­mance by us is unrea­son­able for the customer,
   • if we have not per­formed a ser­vice by a date stip­u­lat­ed in the con­tract or with­in a peri­od stip­u­lat­ed in the con­tract (so-called fixed deliv­ery date), even though the cus­tomer had informed us before con­clu­sion of the con­tract or we had become aware through cir­cum­stances oth­er than those asso­ci­at­ed with con­clud­ing the con­tract, that time­ly per­for­mance or per­for­mance with­in the dead­line is essen­tial for the customer,
   • if we have seri­ous­ly and final­ly refused sup­ple­men­tary performance,
   • if spe­cial cir­cum­stances exist sur­round­ing a ser­vice that our com­pa­ny has not per­formed as spec­i­fied in the con­tract which, tak­ing into con­sid­er­a­tion the inter­ests of both par­ties, jus­ti­fies the imme­di­ate with­draw­al from the con­tract by the customer.
5. If the cus­tomer is a con­sumer and has installed the defec­tive item into anoth­er item, in accor­dance with its type and intend­ed use, or has fit­ted it to anoth­er item, we shall be oblig­at­ed to reim­burse the cus­tomer for the nec­es­sary costs of remov­ing the defec­tive item and installing or affix­ing the repaired item or new­ly deliv­ered item. The statu­to­ry pro­vi­sions shall apply in this respect.
6. If the cus­tomer is a busi­ness enter­prise, he shall not be enti­tled to demand that we reim­burse him for the nec­es­sary costs of remov­ing the defec­tive item and installing or affix­ing the repaired item or new­ly deliv­ered item. Such claims for com­pen­sa­tion are express­ly exclud­ed, unless we have mali­cious­ly con­cealed the defect.
7. Busi­ness enter­pris­es must noti­fy us in writ­ing of obvi­ous defects with­in a peri­od of 5 days of receiv­ing the goods; oth­er­wise the asser­tion of war­ran­ty claims in this respect is exclud­ed. This shall not apply if we have mali­cious­ly con­cealed the defect. To com­ply with the dead­line it is suf­fi­cient for the noti­fi­ca­tion of defect to be sent in suf­fi­cient time.
8. Con­sumers must noti­fy us in writ­ing of obvi­ous defects with­in a peri­od of two months of receiv­ing the goods. To com­ply with the dead­line it is suf­fi­cient for the noti­fi­ca­tion of defect to be sent in suf­fi­cient time. Should the con­sumer fail to send such noti­fi­ca­tion, his war­ran­ty rights per­tain­ing to this obvi­ous defect shall cease to exist once the two-month dead­line has expired. This shall not apply if we have mali­cious­ly con­cealed the defect.
9. If a liv­ing plant is the pur­chased item and the plant dies, becomes infest­ed with pests or oth­er­wise devel­ops a dis­ease, even with­in six months of the trans­fer of risk, the con­sumer shall assume the bur­den of proof that this sit­u­a­tion had not already exist­ed at the time of hand­ing over the goods and did not occur due to improp­er treat­ment of the plant by the consumer.
10. Should we fail to per­form a due ser­vice or fail to per­form it as spec­i­fied in the con­tract, the cus­tomer shall, with­out requir­ing a spe­cif­ic dead­line, be enti­tled to demand com­pen­sa­tion from us if we have seri­ous­ly and final­ly refused to per­form or if spe­cial cir­cum­stances exist which, tak­ing into con­sid­er­a­tion the inter­ests of both par­ties, jus­ti­fies imme­di­ate­ly assert­ing a claim for com­pen­sa­tion. In terms of the nec­es­sary costs of remov­ing the defec­tive item and installing or affix­ing the repaired item or new­ly deliv­ered item, the lim­i­ta­tions set forth in par. 5 of this sec­tion shall apply.
11. In terms of obvi­ous defects, unless oth­er­wise defined in this sec­tion, the peri­od of lim­i­ta­tion relat­ing to war­ran­ty claims for mate­r­i­al defi­cien­cies for busi­ness enter­pris­es shall be one year from deliv­ery of the goods. For con­sumers the peri­od of lim­i­ta­tion shall be two years from deliv­ery of the goods.

§11 Varieties protected by patents and plant variety rights

The pur­chase of vari­eties that are pro­tect­ed by patents and plant vari­ety rights, the names of which are pro­tect­ed by trade­mark law, oblig­ates the cus­tomer, when con­sid­ered to be a busi­ness enter­prise, to only resell those vari­eties with the orig­i­nal labels that were sup­plied with the plants and not to use the pur­chased plants, or parts there­of, for breed­ing pur­pos­es. The cus­tomer, who is con­sid­ered to be a busi­ness enter­prise, under­takes in turn to impose the same require­ments upon his cus­tomers in cas­es where these plants are resold.

§12 Limitation of liability/disclaimer

1. In the event that we breach our oblig­a­tions our lia­bil­i­ty shall be lim­it­ed to intent and gross neg­li­gence. These lim­i­ta­tions of lia­bil­i­ty shall also apply to breach­es of oblig­a­tions by our statu­to­ry rep­re­sen­ta­tives and vic­ar­i­ous agents.
2. The lim­i­ta­tions of lia­bil­i­ty and dis­claimers as set forth in par. 1 of this sec­tion shall not apply: 
   • in the event that we or our vic­ar­i­ous agents breach an oblig­a­tion inten­tion­al­ly or with gross negligence,
   • in the event of dam­ages where we or one of our vic­ar­i­ous agents are respon­si­ble for loss of life, per­son­al injury or dam­age to health (per­son­al injuries),
   • in the event of a delay for which we are respon­si­ble, pro­vid­ed a fixed deliv­ery date had been agreed,
   • in the event that a war­ran­ty is giv­en in respect of the char­ac­ter­is­tics of the goods, if a suc­cess­ful per­for­mance guar­an­tee was giv­en or if a pro­cure­ment risk was assumed,
   • for claims result­ing from the prod­uct lia­bil­i­ty law,
   • in the event that car­di­nal oblig­a­tions are breached (essen­tial con­trac­tu­al oblig­a­tions). These include such dam­ages that we cause through an ordi­nary neg­li­gent breach of such con­trac­tu­al oblig­a­tions, the ful­fil­ment of which is essen­tial for the prop­er per­for­mance of the con­tract and upon which the cus­tomer reg­u­lar­ly relies and may rely.
3. Where no cas­es as set forth in par. 2 of this sec­tion exist, our lia­bil­i­ty, and that of our vic­ar­i­ous agents shall, in the event of breach­es oblig­a­tions caused by ordi­nary neg­li­gence, be lim­it­ed to the fore­see­able dam­ages that are typ­i­cal for this kind of con­tract. We shall there­fore not be liable for dam­ages that we would not have been expect­ed to have fore­seen at the time of con­clud­ing the con­tract as a pos­si­ble con­se­quence of the breach of con­tract. We shall also not be liable for dam­ages not caused to the deliv­ered item itself; in par­tic­u­lar, we shall not be liable for lost profits.

$13 Final provisions

1. The law of the Fed­er­al Repub­lic of Ger­many shall apply. The pro­vi­sions of the UN Sales Con­ven­tion (CISG) shall not apply.
2. If the cus­tomer is a trad­er, a cor­po­rate body under pub­lic law or a spe­cial insti­tu­tion under pub­lic law, the exclu­sive place of juris­dic­tion for all dis­putes aris­ing from this con­tract shall be the loca­tion of our reg­is­tered office. The same shall apply if the cus­tomer does not have a place of gen­er­al juris­dic­tion in Ger­many or if his domi­cile or habit­u­al res­i­dence at the time of the com­mence­ment of pro­ceed­ings are unknown. Oth­er­wise the statu­to­ry pro­vi­sions shall apply.
3. Should any indi­vid­ual pro­vi­sions of the con­tact with the cus­tomer, includ­ing these gen­er­al terms and con­di­tions of busi­ness, be or become inef­fec­tive in part or in full, this shall not affect the valid­i­ty of the remain­ing provisions.