General Terms and Conditions for Hassinger Orchideen Vertriebs GmbH
1. Scope of application
1.1 These General Terms and Conditions (hereinafter referred to as “GTCs”) of Hassinger Orchideen Vertriebs GmbH (hereinafter referred to as “Seller”) apply to all agreements concluded by a company or organisation as defined in § 14 BGB [German Civil Code] (hereinafter referred to as “Customer”) with the Seller.
1.2 The GTCs of the Seller apply exclusively. Any terms and conditions that differ from or contradict the GTCs of the Seller, or any supplementary agreements that are not expressly acknowledged in writing by the Seller, are not binding. The GTCs of the Seller also apply even if delivery is performed by the Seller without reservation in the knowledge of contrary conditions of the Customer that deviate from the GTCs of the Seller.
1.3 Unless otherwise agreed, interpretation of agreement terms shall be governed by Incoterms®2010 (EXW in accordance with INCOTERMS 2010), including any supplements or amendments to the agreement at the time the agreement was concluded.
2. Conclusion of Agreement
2.1 Representations and descriptions of goods (e.g. in brochures, catalogues, advertising material, etc.) do not constitute a binding offer to the Customer; they merely invite the Customer to submit a binding offer (an order).
2.2 The Customer is bound by any order that it places with the Seller for a period of two weeks following receipt of the order by the Seller, unless the Customer specifies otherwise when placing the order. Furthermore, through submitting its order the Customer acknowledges the GTCs of the Seller.
2.3 The order is deemed to have been placed once the Seller has officially confirmed the order (doing so by email, fax or by post).
2.4 The period for acceptance of the offer shall begin on the day after the offer is sent by the Customer and shall end upon expiry of the fifth day following the sending of the offer.
2.5 If the order is completed after the two-week binding period has lapsed (Section 2.2) – irrespective of whether first through written order confirmation or delivery of the product – the order will nevertheless be deemed to exist provided that the Customer does not raise any immediate objection in respect of the order.
2.6 The Seller is entitled, in its order confirmations, to amend types, amounts and delivery times to reflect its actual delivery capabilities. Such amendments shall be deemed to have been agreed if the Customer does not object to the order confirmation within two weeks of receiving the same. This shall only apply if the amendment or amendments that consider the interests of the Seller can be reasonably accepted by the Customer.
3. Scope of delivery (Delivery restrictions, delivery deadlines, part deliveries)
3.1 Agreed delivery deadlines shall refer to the goods being presented for handover or shipment at the premises (Wiesbaden, Nettetal or Bergheim sites) of Hassinger GbR (EXW, INCOTERMS 2010®).
3.2 Orders for plants and/or propagating material, which are still at the growing stage at the time of purchase, shall be accepted provided that they are of fair and reasonable quality in terms of plant material.
3.3. An obligation to purchase shall exist for plants already produced. If, after prior request for acceptance within the deadline, the Customer does not accept the plants, we shall be entitled to reimbursement of any extra costs incurred arising from non-acceptance and to possible compensation for damages.
3.4 Partial or complete failure of the cultivation or harvest of propagation material or partial spoilage during storage for any reason will release the Seller from the obligation to deliver and his other obligations, unless attributable to gross negligence on the part of the Seller or the Seller’s vicarious agents. In such a case, the Seller shall inform the Customer of this without delay.
3.5 Lack of raw materials or energy and operational problems, transport disruption or disruption to the operational process, official decrees or orders or other restrictions imposed by public authorities in addition to any cases of force majeure or any other circumstances that are neither attributable to the Seller, nor which were foreseeable for the Seller, release the Seller from his obligation to deliver for the duration of their existence, insofar as these circumstances affect his ability to deliver. This applies also in particular for weather-related disasters, hail frost and drought damage.
3.6 In each of the cases stated in Section 3.5 above, the Seller is entitled, without being obliged to pay compensation – subject to Section 9 below – to withdraw from the agreement if provision of delivery is impossible or unreasonably difficult, or if an end to the duration of the circumstances preventing delivery cannot be foreseen. This shall only apply insofar as neither the Seller nor its vicarious agent is responsible for any obstacle to delivery and provided that the Seller immediately informed the Customer of the aforementioned obstacle to delivery. In the event of withdrawing from the agreement, the Seller is obliged to immediately reimburse the Customer for any payments already rendered.
3.7 A purchase agreement covers the respective annual delivery quantity. The Seller is entitled to fulfil orders by making partial deliveries, unless otherwise agreed. The Customer may only refuse to accept partial deliveries if, from an objective perspective, this is not in the Customer’s interest. Refusal to accept any deliveries must be made in writing; the written refusal must also contain the reasons for the lack of objective interest on the part of the Customer.
3.8 If part deliveries are made, the Seller is entitled to invoice individually for each part delivery. Invoicing shall be based on the agreed individual unit prices; if part deliveries are made at the request of the Customer, any additional costs incurred as a result shall be charged to the Customer.
3.9 Cultivation information, planting instructions, recommendations relating to plant protection or other advice are not the subject of this purchase agreement. Insofar as they are not made the subject of the agreement by means of an additional written agreement, they only represent non-binding information. They do not release the Customer from its obligations in respect of the professional and expert processing of the goods supplied or from the necessary care in particular regarding the use of plant protection products and fertilisers, as well as products to promote or inhibit growth.
4. Obligation to inspect and give notice of defects
4.1 The Customer is obliged to examine and check goods immediately upon receipt, if necessary by carrying out a sufficient number of random sample checks, depending on the quantity of the goods delivered.
4.2 Notification in respect of obvious defects regarding the type, quantity and quality of the goods must be submitted by the Customer to the Seller in writing and done so without delay, but in all cases within a period of two weeks after receipt of the goods. Transport personnel are not authorised to take receipt of notifications of defects. The Customer shall forego any entitlements in respect of obvious defects if it fails to give notice of defects immediately, even if it does so within the aforementioned two-week period. The timely dispatch of the notification of defects shall suffice to comply with the deadline.
4.3 Non-evident defects (concealed defects) must be reported by the Customer in writing and immediately, but at the latest within one year of receipt of the goods. In addition, sections 377 ff. of the HGB (German Commercial Code) shall apply.
4.4 If the Customer suspects that the goods contain defects, he is to separate the goods which may be affected – both from goods supplied by Hassinger Orchideen Vertriebs GmbH and from goods which are already present – in order to mitigate any damage and prevent the infestation from spreading.
4.5 If the Customer notifies a defect regarding goods received, it shall give the Seller the opportunity to examine the goods itself and/or have the goods examined by an appointed third party and to investigate the extent and type of notified defect; examination shall take place at an appointment arranged in advance and during normal business hours.
4.6 Any notification of defects not made within the stipulated notification period shall result in the Customer forgoing his rights in this regard. Receipt of a notification of defects by the Seller shall not constitute an acknowledgement of the defects notified.
5. Terms of delivery
5.1 The Seller shall define delivery dates in consultation with the Customer. The defined delivery dates shall not be considered as deadlines. If a delivery date is agreed upon, the Seller shall endeavour to honour this date for delivery. If the Seller cannot deliver on the agreed date or within the agreed period, it shall inform the Customer as quickly as possible. After consultation with the Customer, the Seller shall determine a new delivery date.
5.2 If the Customer receives the goods ordered before the agreed delivery date or before expiry of the delivery period stated in section 5.1, the risk pertaining to the accidental loss of the goods shall transfer to the Customer.
5.3 If the Customer receives, or wishes to receive, the goods ordered after the agreed delivery date, the risk of any loss of quality resulting from longer storage shall transfer in full to the Customer.
5.4 The risk of accidental loss or deterioration of the goods passes to the Customer upon delivery, in the event of a sale by dispatch, upon the delivery of the goods to the forwarding company, to the carrier or to any other person or institution engaged to perform the shipment. Delivery shall be deemed to have occurred also when the customer is in default of acceptance.
5.5 A so-called data logger can be included in the goods shipment. The data logger records the atmospheric conditions during shipment. The Customer shall be informed of this in advance and is responsible for ensuring that the data logger is returned to the Seller in fully functional condition within two weeks of delivery of the goods.
5.6 If the Customer arranges collection of the goods by itself or on its behalf from the Seller’s production facilities, it shall carry out the loading of the goods. In this case, the Customer is responsible, solely or in conjunction with any agents it appoints to act on its behalf, for conducting the loading process in a proper manner and for compliance with provisions regarding loading and load securing.
6. Prices and payment terms
6.1 All prices and unit prices (Currency: the euro) shall be determined by Hassinger GbR, unless otherwise agreed. The prices shall be deemed as excluding any value-added tax due by law at the time of delivery, as well as any shipping, postage and packaging costs. Statutory valued-added tax, as well as the shipping, postage and packaging costs, are listed separately. Prices shall apply as they appeared in the valid price listings at the time the order was placed.
6.2 In exceptional cases, the Seller retains the right to advance payment or a cash-on-delivery arrangement. The Seller is also entitled to demand an advance payment of up to 50% of the net purchase price.
6.3 Reductions such as discounts or any other special rates for the Customer shall require prior separate agreement. A discount or special-rate agreement shall not be assumed to exist simply because the Seller has in the past supplied goods to the Customer at discounted prices or special rates. Discounts and special rates must instead be agreed upon separately for each new agreement.
6.4 Invoices shall be due for payment immediately at the Seller’s company headquarters.
6.5 Payments must be made solely to one of the Seller’s specified bank accounts.
6.6 Should the Customer fall into arrears either fully or partially with its payment obligations, the legal consequences of payment default shall ensue in accordance with the statutory provisions stipulated in sections 286, 287 and 288 of the BGB (German Civil Code). The interest rate applicable to the outstanding payments is eight percentage points above the base rate.
6.7 The Customer is excluded from counterclaiming its right to offset or withhold payments, unless the Seller acknowledges this counterclaiming right or if the right to counterclaim has been found to be legally valid.
7. Retention of title
7.1 The goods supplied shall, unless otherwise agreed, remain the property of the Seller until full settlement of all current claims and of any claims by the Seller arising against the Customer in the future that may derive from the Seller’s business relationship with the Customer – including any costs, interest and damages caused by arrears in payment.
7.2 The Seller’s retention of title shall extend to the plants and work products created by the Customer working, processing, combining or mixing the goods delivered by the Seller which are subject to the Seller’s retention of title.
7.3 The Customer is obliged to treat the goods with care until such time as ownership has been transferred to it in full. In particular, the Customer is obliged to provide insurance cover for the goods, at its own expense, against theft, fire and water damage at a value sufficient to cover the original value of the goods.
7.4 The Customer is entitled, within the scope of its usual, proper business activities, to resell the goods supplied by the Seller. In this case, the Customer shall herewith transfer all claims against its buyers that arise from resale to the same. The transfer of claims declared herewith shall be limited to the Seller’s claim vis-a-vis delivery of the resold goods, including possible costs, interest payments and compensation for damages due to delays of payment, insofar as these have already been charged to the Customer or where the Customer has been notified thereof. At the request of the Seller, the Customer must disclose to the Seller all resales of goods not yet paid for, clearly identify the recipients and make available to the Seller any information required in order to enforce the claims transferred to it.
7.5 The Customer is entitled to collect from its own buyers the claims transferred to the Seller. The Customer is obliged to immediately pass on to the Seller the payments received from its buyers, up to the amount of the claims due to the Seller. If the Customer collects claims transferred to the Seller from the Customer’s own buyers, without passing on these claims to the Seller accordingly, the Seller shall be entitled to disclose the transfer of all claims – including those against other buyers – and demand immediate payment unto itself.
7.6 If a third party – particularly as part of foreclosure of insolvency procedures – wishes to lay claim to the retention of title to the goods of the Seller, the Customer is obliged to notify said third party that the goods are the property of the Seller and provide the related documentation that indicates this. The Customer must also inform the Seller of this claim immediately.
8.1 If goods supplied in vitro by the Seller are defective and, provided the cause of the defect already existed at the time the risk was transferred, warranty obligations on the part of the Seller shall be automatically triggered, provided that the defect or defects occur within the limitation period (Section 8.3) and that notification has been made of these defects.
8.2 If goods supplied by the Seller are resold by the Customer, and if the Customer’s purchaser or the last purchaser in the supply chain constitutes a consumer as defined in section 13 of the BGB (German Civil Code), the Customer can assert claims against the Seller as a supplier under a right of recourse in accordance with the stipulations defined in sections 478 and 479 of the BGB. In a legitimate case of recourse against the Seller, the restrictions on the warranty commitments of the Seller contained in these GTCs shall not apply. A prerequisite for any recourse against the Seller as a supplier is that the goods supplied by the Seller were sold to the consumer via the supply chain in their original condition and were not altered in any way. A claim for recourse requires that any defect detected at the time the goods were handed over to the consumer also constitutes a defect as defined in the terms of the relationship between the Seller and the Customer.
8.3 Warranty claims expire within 12 months. Notwithstanding this, the statutory periods of limitation apply in the case of justified recourse against the Seller by the Customer (Section 8.2). The Seller is only liable for damage to the delivered goods and not for consequential damages; in the event of culpable breach of material contractual obligations, liability is limited to typical, reasonably foreseeable damage.
8.4 If the Customer fails to fulfil its obligations of inspection and notification of defects as stipulated in Section 4 above, it can lose its right to claim under the terms of the warranty in accordance with the stipulations set out in Section 4; this also applies in the context of the right to recourse against the supplier if the Customer is a commercial operator, as defined in Section 377 of the BGB (German Civil Code).
8.5 If the Customer makes any justified warranty claims against the Seller, the Seller is thus first obliged to carry out subsequent performance (rectification of defects or supply of defect-free goods). If the Seller refuses to carry out subsequent performance or if this subsequent performance proves unsuccessful, the Customer is, in line with legal stipulations, entitled to reduce the purchase price or withdraw from the agreement.
8.6 Diseases which naturally affect plants and infestation by viruses cannot be excluded through technological means. The Seller merely confirms that the starting material used is tested by means of the currently customary detection methods (Elisa Test) of I.+A. Hark Orchideen GmbH & Co.KG without any guarantee of freedom from diseases which naturally affect plants or from virus infestation. This testing method currently consists of checking for ORSV and CymMV infestation.
8.7 Since mutations (abrupt genetic changes) of the clones cannot be prevented, liability for any mutations is excluded.
9. Claims for damages by Customer
9.1 Claims for damages and reimbursement of expenditure of the Customer arising from defects that are not ruled out by the aforementioned agreements or sections expire within 12 months.
9.2 Compensation claims by the Customer are not excluded in respect of the following:
a) For damages arising from loss of life, physical injury or damage to health, which are attributed to a grossly negligent breach of our duties, or the intentional or grossly negligent breach of duties by our legal representatives or vicarious agents;
b) other damages, which are attributable to grossly negligent breach of our duty or to the intentional or grossly negligent breach of duty by our legal representatives or by our vicarious agents.
10. Delivery and/or invoicing to a third party on the instruction of the customer
10.1 Before a purchasing customer instructs us to deliver goods to a third party designated by the purchasing customer, the purchasing customer is obliged to inform the third party in advance of the validity and content of these General Terms and Conditions of business and delivery.
10.2 If we, at the instruction of the Customer, invoice the goods to the third party named in section 10.1, the Customer remains, as joint and several debtor, obliged to fulfil the contract in full until our claims vis-à-vis the delivery and the third party have been met in full and without reservation.
11. Property rights
11.1 The plants supplied may not be reproduced, used for further propagation, put into circulation or imported/exported.
11.2 Any other agreements shall be specified in a separate contract.
11.3 If the Customer contravenes any stipulations contained in the above sections, the holder of the plant variety protection rights may exercise the rights set forth in the relevant statutory provisions.
12. Place of performance, place of jurisdiction, safeguarding clause
12.1 The place of performance for all services defined in agreements concluded between the Seller and the Customer is Wiesbaden or Bergheim, both in Germany.
12.2 The substantive law of the Federal Republic of Germany applies exclusively. The validity of the UN Convention on Contracts for the International Sale of Goods is excluded.
12.3 Mainz is the place of jurisdiction for all legal disputes resulting from and in connection with the contractual relationship between the Seller and the Customer, unless another exclusive place of jurisdiction is stipulated according to the law.
12.4 Should individual provisions of these General Terms and Conditions of business (GTCs) be or become wholly or partially ineffective or invalid, this shall not affect the validity of the remaining GTCs. The Customer shall acknowledge that any wholly or partially ineffective or invalid provision is to be replaced by a provision that corresponds as closely as possible to the original provision.