General Terms & Conditions of Delivery and Agreement of H. Lorberg Baumschulerzeugnisse GmbH & Co. KG and the Lorberg Baumschulen Baden-Baden GmbH
These terms & conditions shall be the integral component of all the delivery contracts, agreements, and offers. They shall be deemed to have been acknowledged, at the latest, when the order is placed or the velivery has been accepted.
Any deviating agreements shall be effective only if they are confirmed in writing by the Seller.
All the submitted ofers shall be non-binding according to our availability. Offers shall become binding upon confirmation or execution of the order.
Orders placed shall have to be confirmed by the Seller. In the event that the Purchaser does not raise any objections in text form within an additional 10 days, the order shall be deemed to have been placed under these terms & conditions.
Those sales and delivery terms and/or general terms & conditions of business are explicitly objected to, which conflict with our sales and delivery terms.
2. Prices and terms of payment
All prices are quoted in Euro ex point of sale, excluding packaging and transportation, plus the VAT that is applicable on the date of delivery. All earlier price lists shall lose their validity with the publication of new price lists.
List prices shall not apply in case of a personal selection of plants in our nursery.
Foreign currencies shall be converted into Euros at the official exchange rate of the respective currency that is listed at the European Central Bank on the date of invoicing, unless the invoice is issued in that currency.
Within the scope of the execution of the contractual relationship, the Purchaser shall be obliged to make advance payment. Therefore, the Seller reserves the right to execute the orders against cash on delivery.
If a credit period of 30 days from invoicing is granted, a 2 % discount on the net value is granted if payment is made within 14 days of invoicing.
A set-off against the claims of the Seller or a set-off against the counterclaims of the customer shall be excluded, unless such a claim is undisputed or legally established or in case the counter claims are based on the same contractual relationship. The assertion of a right of retention shall be permissible only in circumstances, which arise from the same delivery. In commercial legal transactions, the exercise of a right to refuse performance or a right of retention by the customer is excluded, insofar as a set-off would be excluded pursuant to the above provision.
Cheques and bills of exchange shall only be accepted on account of performance and with the proviso of encashment. Expenses and costs incurred thereby shall be borne by the Purchaser.
In the event that there is a considerable deterioration in the financial circumstances of the Purchaser (for example, submission of an affidavit or initiation of insolvency proceedings etc.), the Seller shall be entitled to make the performance of its contractual services contingent upon the advance payment of the agreed remuneration or upon a provision of a corresponding security. In the event that the Purchaser fails to act after a reasonable grace period has been granted, the Seller shall be entitled to withdraw from the agreement and demand a compensation for damages.
In the event of a default in payment, at the latest, upon expiry of 30 days from the receipt of invoice by the customer, alternatively upon receipt of goods, interest shall be charged at the rate of 9 percentage points above the base rate (§ 247 German Civil Code [BGB]), 5 percentage points above the base rate if the costumer is a consumer.
3. Dispatching and packaging
If the Purchaser is an enterpreneur the dispatching, including the transportation to the rail or ship, shall be effected on the account and at the risk of the Purchaser. In the event that the consignment is delayed due to a circumstance for which the Purchaser is responsible, then the risk shall pass over to the Purchaser from the day on which the goods are ready for dispatch. The consumer bears all the costs of transportation.
The Seller shall package the goods properly and carefully. Individual delivery items must be marked clearly.
A transportation insurance shall be concluded only at the explicit request and expense of the Purchaser.
Disposable packaging shall be charged at the cost price. Reusable packaging (for example, iron barred boxes, nursery paletts) shall remain the property of the Seller and must be returned at the expense of the Purchaser.
Packaging and transportation costs, as well as cartage may be charged subsequently.
Delivery by truck can only be made on freely accessible road. The delivery shall not include the unloading of the goods.
4. Delivery obligations
In the event of catastrophes caused by the weather, such as, for instance, drought, frost or hail or any other non-culpable circumstances, such as, for instance, epidemics, strike, lock out, operational disruptions of any kind, war, war-like events, changes in currency, official interventions, the delivery deadline shall be extended by the duration of the disruptive circumstances. In the event that the delivery becomes impossible due to the circumstances mentioned above, the Seller shall be released from the obligation to deliver. The Purchaser shall not assert the claims for damages/compensation in this regard.
Fixed delivery deadlines shall be binding for the Seller only if they have been confirmed in writing. The right to partial deliveries is explicitly reserved.
5. Specifications and samples
All sizes are approximate. Deviations on the order of ±10 % are permissible in case of natural products and shall not substantiate any material defect.
The samples only indicate the average quality. Not all plants will turn out to be as the sample.
6. Retention of title
The delivered goods shall remain the property of the Seller until the complete fulfilment of all the claims and ancillary claims already existing or arising in future against the Purchaser.
The Purchaser shall be entitled to resell the goods within the ordinary course of business ot to plant them on land and property owned by third parties; in doing so, the exisitng retention of title must be disclosed. The Purchaser shall not be authorised to dispose of the reserved goods in any other manner, in particular, pledges or transfers by the way of security.
The Purchaser hereby already assigns to us the claims/receivables amounting to the value of the reserved goods to which the Purchaser shall be entitled from the resale or processing/planting. The Seller accepts this assignment. The Purchaser shall be authorised to include the claim of the Seller, provided that he complies with his payment obligation vis-à-vis the Seller..
In the event that the securities granted exceed the claims by more than 20 %, the Seller - at its own discretion - shall be obliged to return or release the same.
The Seller's ownership of the plants shall not be lost due to the fact that the Purchaser fells or plants the delivered plants on his own or a third party's property until the resale of the delivered plants.
The reserved goods shall be stored, felled or planted separately from other plants, and, in doing so, they must be marked in such a matter that it is perceptible that they originate from the Seller. If, nevertheless, the delivered plants are mixed up with other similar/identical plants, the Seller shall acquire the co-ownership of that lot of the mixed plants, which corresponds to the value of the delivered goods. The acquisition of co-ownership shall be subject to the condition subsequent that the Purchaser fulfils all its claims and ancillary claim existing vis-à-vis the Seller.
The conditional Purchaser shall be obligated to handle the reserved goods with care. This includes, in particular, the correct storage, planting, fertilisation and irrigation.
7. Guarantee and warranty
A guarantee for the growth of the plants is not undertaken. If the Purchaser expressly requests a growth guarantee, it may be agreed separately and a separate amount may be charged for it. A growth guarantee shall extend to a period of one year from the date of delivery and presupposes that the Purchaser has given the plants the treatment that's correct for this species of the plant. This includes, in particular, the correct planting depth, soil type, soil preparation, fertilisation and irrigation. The events of force majeure, in particular, drought, frost, pest infestation etc. The growth guarantee is not a guarantee in the legal sense.
A guarantee of varietal identity shall be offered only upon an explicit request. In case of fruit trees, the guarantee of the authenticity of the fruit varieties and the requested documents shall be offered until the expiry of the fifth year from the date of delivery. The guarantee for berry plants, roses, and other trees and shrubs shall extend only until the expiry of the second year as from the date of delivery. No guarantee is given for the varietal identity and offsprings/reseedings. For grafting rootstocks and young plants/seedlings, the supplier assumes the guarantee for the identity of the delivered species only until the expiry of one year as from the date of delivery.
The enterpreneur shall inspect the goods immediately upon receipt of the goods and inform us, in writing, of any apparent defects without delay, at the latest however, within a period of eight days from the date of the receipt of the goods; otherwise, the assertion of the claims for defects shall be excluded. The timely dispatch of the notice shall be sufficient for the observance of the deadline. The enterpreneur shall bear the complete burden of proof for all the claim prerequisites, in particular, for the defect, the date of the discovery of defect and the timely notification of the defect. The consumer has to check the delivered goods for defects immediately after receipt. The consumer must notify the Seller of defects within an appropriate period from the date of the discovery in text form. Regularly, two weeks shall be deemed an appropriate period. If the consumer fails to send this notification the rights related to the defects shall cease to exist. This shall not apply if the Seller can be blamed for fraudulent intent or intentional or grossly negligent breach of duty as well as in case of body and health damages. The consumer shall bear the burden of proof for proving the date of the discovery of the defect. The consumer shall assume the burden of proof, if he was induced to purchase the item by false advertising information. If a living plant is the item of purchase and the plant dies, is infested with pests or otherwise develops a disease, the consumer shall assume the burden of proof that this cannot be attributed to improper treatment of the plant after its delivery. The liability/warranty for defects vis-à-vis the enterpreneurs shall be one year as from the date of delivery/handing over of the goods. The liability/warranty vis-à-vis the consumers shall be two years as from the date of delivery/handing over of the goods. This shall not apply, if the customer fails to inform us of the defects in due time.
If the Purchaser is a consumer, then in the event of defects, he shall initially be entitled to demand only a supplementary performance. Thereby, he shall have the choice whether the subsequent performance should be carried out by remediation or a replacement delivery. However, we reserve the right to reject the selected method of subsequent performance, if it is only possible at disproportionate costs and if the other method of subsequent performance has no considerable disadvantage for the consumer. If the Purchaser is an entrepreneur, we shall fulfil the warranty at our own discretion initially by means of remediation or replacement delivery. In the event that the subsequent performance fails, the customer can, in principle, at his discretion, demand a reduction of the remuneration (reduction) or cancellation of the agreement (withdrawal). However, in the event of a minor breach of agreement, in particular, in the case of only minor defects, the customer shall not be entitled to a right of withdrawal.
In the event that the customer chooses to withdraw from the agreement due to a legal or material defect after an unsuccessful subsequent performance, he shall not be entitled to any compensation for damages arising due to the defect. In the event that the customer chooses to claim damages after an unsuccessful subsequent performance, the goods shall remain with the customer, if it is reasonable for him. In such a case, the claim for damages shall be limited to the difference between the purchase price and the value of the defective item, otherwise limited to the value of the defective item. This does not apply in the event of malice.
All the claims for the compensation of damages not covered by Clause 7, 4th indent, last paragraph of the terms & conditions of this agreement shall amount to a maximum of the simple net invoiced amount. Any further claims, regardless of any basis and reason whatsoever, shall be excluded, unless the Seller, its representatives or vicarious agents are guilty of wilful intent or gross negligence. The limitation of liability shall not apply in the event of the loss of life, bodily injury or impairment of health.
The Purchaser of the species of roses, which are protected by patent and plant variety rights, as well as of those whose names are protected by trademark law, commits to resell the species/varieties only with the original labels, which were delivered together with the plants, as well as to refrain from using the acquired rose plants or parts thereof for breeding and from selling such rose plants abroad. In cases of resale, the Purchaser commits to impose these stipulations on his customers as well.
8. Place of performance and place of jurisdiction
In the event that the customer is a merchant, a legal entity under public law or a special fund under public law, the place of performance for all the services to be furnished pursuant to this agreement shall be Tremmen; the place of jurisdiction shall be Potsdam. In case of private customers, the place of performance for furnishing the return services and the place of jurisdiction shall be the registered office of the Seller. The same shall apply to any processes related to cheques, bill of exchanges or documents.
German law shall be applicable.
The German right applies to all sales contracts, lease contracts or other contractual relationships of company H. Lorberg Baumschulerzeugnisse GmbH & Co.KG with the purchaser and for conflicts between the parties, for whatever reasons. Therefore the district court Potsdam or the country court Potsdam is solely the competent court for legal disputes between the parties. Place of performance is Tremmen.
9. Arbitration clause
In the event of technical disputes, in particular, concerning the issues pertaining to the quality of plants between the members of the Association of German Nurseries (BdB), an arbitrator shall finally decide on the factual aspects. The arbitrator shall be appointed by the BdB at the request of one of the parties. The recourse to the ordinary courts shall not be excluded hereby.