• Nurseries Lorenz von Ehren

    Standard Terms
    and Conditions of
    Business

     
 

§ 1 General – area of applicability

 

 
1. These Standard Terms and Conditions of Business shall form an integral part of all delivery contracts, agreements and offers. They shall be deemed to have been acknowledged as binding no later than upon the placement of an order or acceptance of delivery.
2. For the purpose of these Standard Terms and Conditions of Business, 'consumers' shall be defined as natural persons without any commercial or independent business operations with whom business relations are established. For the purpose of these Standard Terms and Conditions of Business, 'business entities' shall be defined as natural or artificial persons or non-incorporated entities engaged in commercial or independent business operations with whom business relations are established. For the purpose of these Standard Terms and Conditions of Business, 'customers' shall be defined as comprising both consumers and business entities.
3. Unless we expressly confirm them in writing, we hereby expressly exclude all terms and conditions of purchase or order or any other standard terms and conditions of business which deviate from our own terms and conditions of sale and delivery, contradict these or purport to supplement them notwithstanding the fact that we may be aware of their existence.
 
 

§ 2 Entering of contract

 

 
1. Our offers shall be made without engagement subject to availability of the goods ordered.
2. Upon ordering the goods, the customer declares its binding intention to accept the goods ordered. We may accept the offer to enter into a contract embodied in the order within two weeks of receipt. Such acceptance may be executed by written confirmation of the order or by delivering the goods ordered to the customers.
3. If the consumer orders the goods electronically, we shall confirm receipt of the order immediately, it being understood that such confirmation of receipt shall not constitute binding acceptance of the order. The confirmation of receipt may be tied to the declaration of acceptance.
4. The contract shall be entered into subject to the proviso that we receive the requisite goods from our own suppliers on time. This shall apply only if failure to deliver is for reasons for which we are not responsible, particularly if we enter into a matching covering transaction with our supplier. The customer shall be immediately notified in the event that the goods in question are not available and any payment already made reimbursed.
5. If the consumer has ordered the goods electronically, the wording of the contract shall be stored by us and sent to the customer including these Standard Terms and Conditions of Business by e-mail on request.
 
 

§ 3 Prices and terms of payment

 

 
1. All prices are quoted in euro ex sales outlet excluding packaging and transport plus value added tax. Upon the
release of our new manual, the old prices shall be deemed void.
2. Foreign currencies shall be translated to euro at the official asking price fixed by Deutsche Bundesbank on the date of invoice except where our invoice has been issued in such foreign currency.
3. If customers personally select plants from our site, the list prices shall not apply.
4. We reserve the right to execute orders on a cash-on-demand basis.
5. The customer shall not incur any additional costs as a result of the use of telecommunications.
6. After receiving the goods, the customer undertakes to pay the purchase price no later than 30 days after the date of invoice. If payment is not made within this period, the customer shall be deemed to be in default of payment.
During this period of default, the consumer shall be liable to pay interest on the amount due of 5 percentage points above the base interest rate. During this period of default, the business entity shall be liable to pay interest on the amount due of 8 percentage points above the base interest rate. In connection with business entities, we reserve the right to seek additional legal remedies where warranted.
7. The consumer may only net any counterclaims if these have been upheld in a court of law or are acknowledged by us. A right of retention may be exercised only in connection with circumstances arising from the same delivery. In commercial business relations, customers who are business entities shall have no right of refusal to perform their contractual duties.
8. Cheques and bills shall only be accepted as due performance of the relevant contractual obligations subject to their being duly honored upon presentation for payment. Any costs or fees arising from presentation shall be charged to the buyer.
9. Should the customer's financial situation deteriorate materially, we shall be entitled to make the performance of our contractual duties contingent upon payment in advance of the due amount or provision of appropriate collateral. In the event that our customer fails to take any action to rectify such situation, we shall be entitled to rescind the
contract and recover damages upon the expiry of a certain period.
 
 

§ 4 Transfer of risk, dispatch and packaging

 

 
1. If the customer is a business entity, the risk of accidental loss of or damage to the goods shall pass to the
customer upon the goods being transferred or, in the case of an order for dispatch, upon delivery of the goods to the forwarder, carrier or other person or body instructed to effect delivery of the goods.
2. If the customer is a consumer, the risk of accidental loss of or damage to the goods sold shall not pass to him
until the goods are made available to him, it being understood that this shall also apply in the case of a dispatch
order.
3. The goods shall be deemed to have been transferred to the customer notwithstanding the fact that he is in default of acceptance.
4. If we buy any additional goods, we shall be responsible for packaging such goods and executing delivery properly. Open wagon loans shall be covered. The individual items of the delivery shall be designated clearly.
5. Transport insurance shall be taken out only at the express request and for the account of our customers.
6. Disposable packaging shall be invoiced at cost. Recyclable packaging (e.g. crates, pallets) shall remain our
property and be returned to us at the customer's expense.
7. Packaging and transport costs as well as haulage may be back-charged.
8. Delivery by truck shall be possible only subject to freely accessible roads.
 
 

§ 5 Delivery obligations

 

 
1. In the event of weather catastrophes including but not limited to drought, frost, hail or any other unforeseen
circumstances beyond our control including but not limited to epidemics, strikes, lockouts, disruptions to operations of any kind, war, war-like events, changes in exchange rates or government intervention, the delivery period shall be extended by a period equaling the duration such circumstances. If the aforementioned circumstances render delivery impossible, we shall be discharged of our duty to supply. In such case, the customer shall not be entitled to recover any damages.
2. Delivery dates shall be binding on us only if confirmed in writing.
3. We expressly reserve the right to effect part deliveries.
4. Failure by the customer to comply with our terms of payment with respect to other deliveries shall absolve us of any obligation under the sales contract. Rescission of the sales contract requires our approval. If we are not able to grant such approval, we may recover damages on account of non-performance. The amount of damages which we may recover shall equal 30% of the invoice value with no obligation to prove actual loss. In the event of greater loss, additional damages may be recovered provided that such loss is proved.
 
 

§ 6 Dimensions and samples

 

 
1. All dimensions quoted shall be approximate only, it being understood that deviations of +/- 10 percent shall
be permissible.
2. Samples shall be deemed to show only the average quality. Not all plants shall necessarily be identical to the
sample.
 
 

§ 7 Retained ownership rights

 

 
1. In the case of contracts with consumers, we shall retain ownership rights to the goods delivered until full payment of the purchase price. In the case of contracts with business entities, we shall retain ownership rights in the goods until full settlement of all principal and ancillary receivables arising under any current business relations. The retained ownership rights shall apply notwithstanding the fact that individual receivables have been included in open-account terms and the balance has been drawn and acknowledged.
2. Our retained ownership rights shall not be forfeited by the fact that the business entity as the buyer plants the plants supplied on his own or a third-party property pending resale. The goods subject to our retained ownership rights shall be stored or planted separately from other plants and designated such that they can be distinguished as having been delivered by us.
3. The customer undertakes to treat the goods subject to our retained ownership rights carefully. This shall include but not be limited to storing, planting, fertilizing and watering them properly.The customer undertakes to inform us without delay of any third-party access to the goods, e.g. seizure, as well as any damage to or destruction of the goods, stating the name and address of the seizing party. The customer shall notify us immediately of any change of ownership in the goods as well as any change of address.
4. In the case of any breach of contract on the part of the customer, including but not limited to payment default, or failure to comply with the obligations set out in Sections 2 and 3 of these provisions, we shall be entitled to rescind the contract and demand release of the goods.The business entity may sell the goods as part of its normal business operations.
5. The business entity shall hereby assign to us all receivables payable to the customers as a result of such resale
including all ancillary claims and receivable under existing balances, and we hereby accept such assignment. After assigning the receivables to us, the business entity shall be entitled to collect such receivables on our behalf.
We reserve the right to collect the receivables ourselves as soon as the customer fails to comply with its payment obligations and is in default of payment.
6. The business entity shall always process the goods on our behalf and for our account. If the goods are combined with other goods not belonging to us, we shall receive ownership rights in the resultant goods in the ratio of the value of the goods which we have supplied to the value of the other goods.
 
 

§ 8 Guarantee

 

 
1. We do not assume any guarantee that the plants will take root and grow. If the customer expressly requests such a guarantee, this may be subject to an extra charge. Such guarantee shall remain effective for one year starting with the date of delivery and shall be contingent upon the plants receiving the appropriate and proper treatment including but not limited to the correct planting depth, fertilizer and watering. Instances of force majeure, including but not
limited to drought, frost and pests etc., shall not be covered by the guarantee. The guarantee that the plants will take root and grow shall not be deemed to be a guarantee in the legal sense.
2. A guarantee to the effect that the plants delivered comprise only the grade ordered shall be granted only at the customer's express wish. In the case of fruit trees, the guarantee granted with respect to the right grade and base
requested shall expire at the end of the fifth year after delivery. The guarantee for berries, roses and other trees shall expire at the end of the second year after delivery. No guarantee shall be assumed for the purity of the grade in
further breeds. In the case of inoculation bases and young plants, we shall guarantee the genuineness of the grade supplied only for a period ending one year after the date of delivery.
3. In the case of any non-compliance with the guaranteed characteristics of the goods supplied, we shall at our
discretion either repair the goods or arrange for a replacement delivery if the customer is a business entity.
4. If the buyer is a consumer, he initially has the choice of requesting repairs or replacements to remedy the non-compliance with the guaranteed characteristics of the goods supplied. However, we may reject such choice if it is possible only at unreasonable expense and the other method of remedying the non-compliance does not give rise to any substantial disadvantages for the consumer.
5. If the attempt to remedy non-compliance fails, the customer may at his discretion either reduce the purchase price or rescind the contract. However, the customer shall have no right of rescission in the case of minor breaches of
contractual duties, particularly minor faults.
6. Business entities shall report any evident non-compliance in the goods in writing within a period of 8 days after
receipt of the goods. Failure to do so shall cause them to forfeit all claims under the guarantee. This period shall be deemed to have been complied with if the report is sent off prior to the day of expiry. The full onus of proof shall be on the business entity for all claims including but not limited to the non-compliance itself, the date on which the non-compliance was first discovered and compliance with the reporting period. Consumers shall report any evident non-compliance in the goods in writing within two months of discovering such non-compliance. The period shall be deemed to have been complied with only if such report reaches us before the period expires. If the consumer fails to report such non-compliance to us, all claims under the guarantee shall be forfeited two months after the non-
compliance is discovered. The consumer shall have the onus of proof for the date on which non-compliance was
discovered. The consumer shall also have the onus of proof with respect to any contention claiming that he was
encouraged to buy the goods on account of misrepresentations contained in the brochure.
If a living plant is the subject of a sales transaction, the onus of proof in the event of such plant dying or being
inflicted by pests or any other disease shall be on the consumer to demonstrate that such circumstances were not due to improper handling of the plants after receipt.
7. If the customer opts to rescind the contract as a result of a failed attempt to remedy any legal or non-legal non-compliance, he shall not be entitled to recover damages on account of such non-compliance. If the customer opts to recover damages as a result of a failed attempt to remedy non-compliance, the goods shall remain with the customer provided that this is reasonable. The damages recoverable shall be confined to the difference between the purchase price and the value of the non-compliant products. This shall not apply if such contractual non-compliance is due to willful fraud.
8. The guarantee shall expire one year after delivery of the goods for business entities. In the case of consumers, claims shall be barred two years after delivery of the goods. This shall not apply if the customer has not reported the non-compliance to us within the requisite period of time (Section 6 of this provision).
9. Business entities buying types of roses subject to patent and grade protection as well as those with registered names shall only resell such products with the original labels supplied with the plants and not use the roses received or any parts thereof for breeding purposes or sell any such roses outside Germany. If the customer is a business
entity, it undertakes to impose such duties on the customers to whom it resells such goods.
 
 

§ 9 Liability limitations

 

 
1. In the event of simple negligence, our liability shall be confined to direct average loss or damage which is
foreseeable and typical given the nature of the goods in question. This shall also apply to simple negligence on the part of our statutory representatives and services. We shall not be liable to business entities in the event of simple negligence caused by failure to comply with non-material provisions of the contract.
2. The aforementioned restrictions to our liability shall not apply to any claims held by customers under product
liability legislation In addition, the limitation of liability shall not apply to injury, impaired health or loss of life for
reasons for which we are responsible.
3. The customer's claims to damages shall be barred one year after delivery of the goods except in the event of
gross negligence on our part as well as injury or loss of life on the part of the customer for reasons for which we
are responsible.
 
 

§ 10 Right of rescission and return

 

 
Electronic sales contract with right of rescission

1. The consumer may rescind his declaration to enter into a contract within two weeks of receipt of the goods
except where the goods comprise living plants. The declaration of rescission, for which no reasons must be given, shall be in text form or be implied by the return of the goods. This period shall be deemed to have been complied with if dispatch is effected before the expiry date.
2. If the consumer exercises his right of rescission, he must return the goods sent. If the right of rescission is
exercised, the consumer shall bear the cost of returning the goods.
3. The consumer shall be liable for any impairment in the value in the goods as a result of using them. The consumer may examine the goods carefully. The consumer shall bear the cost caused by the value impairment resulting from the inability to sell the goods as “new”.
 
 

§ 11 Miscellaneous provisions

 

 
1. The law of the Federal Republic of Germany shall apply. The UN Convention on Contracts for the International Sale of Goods shall be excluded.
2. If the customer is a business entity, a public-law body or a special public-law asset, all disputes arising from this contract shall be referred solely to the courts of law responsible for the town or city in which we are domiciled. This shall also apply if the customer does not have any legal venue in Germany or his place of abode is unknown on the date on which court proceedings are commenced.
3. If any of the provisions contained in the contract with the customer or in these Standard Terms and Conditions are void in full or in part, this shall not prejudice the validity of the other provisions. Such void provision shall be replaced by a valid one coming as close as possible to the commercial effect of the ineffective one.

Pflanzenhandel Lorenz von Ehren GmbH & Co. KG
Hamburg, June 2008
 
 

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Baumschule
Lorenz von Ehren GmbH

& Co. KG

Maldfeldstr. 4
21077 Hamburg
Phone:
+49 (40) 76108-0

Fax:
+49 (40) 76108-100

E-Mail: