• Nurseries Lorenz von Ehren

    General Terms and Conditions (GTC) for
    Entrepreneurs

     
 

§ 1 General – area of applicability

 

 
  1. These General Terms and Conditions (GTC) shall apply exclusively to an entrepreneur, a legal person as defined in public law and a special fund as defined in public law within the meaning of Section 310 Para. 1 of the German Civil Code (BGB).
  2. These GTC shall form an integral part of all delivery contracts, agreements and offers. They shall be deemed as having been accepted no later than upon the placement of an order or acceptance of delivery.
  3. We hereby expressly reject the Customer’s terms and conditions that differ from our own terms and conditions, contradict these or supplement them, even if we are informed of these other conditions, they will not become part of the contract, unless we explicitly consent to their validity in writing.
  4. These GTC shall also apply to all future business. 
 
 

§ 2 Effective date of the contract, self-supply reservation

 

 
  1. All our offers are subject to change. The presentation on the internet also does not constitute a binding offer.
  2. By ordering the goods, the Customer declares his binding intention to purchase these goods.
  3. The contract shall only be deemed concluded once we confirm the customer order in writing (e.g. by post or email) or deliver the goods to the Customer. The confirmation of receipt shall not constitute an acceptance of the order.
  4. Unless we expressly accept the order or effect delivery within 14 days, the Customer shall not be bound by the order.
  5. Collateral agreements shall only be valid if concluded in writing.
  6. If in order to fulfil a contract with the Customer, we are dependent on the delivery of goods and if this delivery does not take place, despite having placed appropriate orders with reliable suppliers, we will be released from our obligation to perform and may withdraw from the contract. We are obliged to inform the Customer immediately of the unavailability of the service and will immediately reimburse the Customer for any payments already made.
 
 

§ 3 Prices, packaging and transport costs,
subsequent price adjustment

 

 
  1. All prices are quoted in euro excluding VAT at the currently applicable rate.
  2. If the Customer personally selects goods from our company and these goods are expressly labelled, the agreed price (piece goods) shall apply to these goods; no other list prices shall apply in this case.
  3. Unless indicated otherwise, all prices are quoted ex point of sale, excluding packaging and transport costs. Packaging and transport costs are billed separately (See Section 9: Transfer of risk, transport).
  4. Foreign currencies shall be translated into euro at the official selling rate fixed by Deutsche Bundesbank on the date of invoice, except where our invoice has been issued in such foreign currency.
  5. If the agreed delivery of goods has been agreed with the Customer for more than three months after contract conclusion, we reserve the right to pass on to the Customer any price increases for material costs and merchandise, up to a maximum of 5% of the net price. Such a price adjustment of up to 5% shall not entitle the Customer to withdraw from the contract. We shall not be entitled to such a price adjustment if the delivery is delayed by more than three months following contract conclusion due to reasons for which we bear responsibility.
 
 

§ 4 Dimensions and samples

 

 
  1. All dimensions quoted by us in sales brochures, manuals, online shops or other offers are approximate only, it being understood that variations in the order of +/-10 percent are permissible. For plants, the quality regulations for nursery plants of the Forschungsgesellschaft Landschaftsentwicklung Landschaftsbau e.V. (FLL) shall apply  
  2. Samples are only an indication of the average quality. Not all plants necessarily have to be identical to the sample. In general, goods of the same kind and not below average in quality shall be delivered. Variations with regard to height, growth, root ball size etc. shall remain reserved insofar as we have not guaranteed a specific condition.
 
 

§ 5 Terms of payment

 

 
  1. After receiving the goods, the total invoice amount is immediately due for payment. If Customers buy directly from our retail outlet, payment must be effected immediately.
  2. Payment must be made within 30 days of receipt of the invoice  and the goods. The Customer shall not be deemed in default if the services are not rendered due to circumstances for which the Customer is not responsible.
  3. Cheques are accepted only in lieu of performance with the proviso that they are honoured by the bank. Costs arising from this shall be borne by the Customer.
 
 

§ 6 Exclusion of set-off, right of retention limitation,
defence of uncertainty 

 

 
  1. Set-off rights can be only granted to the Customer if his claims have been legally established or are ready for decision, undisputed or recognised by us.
  2. The Customer shall only be authorised to exercise a right of retention to the extent that his counterclaim is based on the same contractual relationship.
  3. If, following conclusion of the contract, it becomes evident that the Customer's insufficient ability to pay endangers our payment claim, we will be entitled to refuse performance/delivery. This right to refuse performance on our part shall not apply if the Customer provides payment or security for payment. We are entitled to set an appropriate period during which the Customer is to provide payment or suitable security against delivery. If this period expires unsuccessfully, we are entitled to withdraw from the contract.
 
 

§ 7 Deliveries, delivery deadlines, temporary or permanent
impediments to performance/delivery

 

 
  1. Fixed terms of delivery are only binding if they are confirmed by us in writing.
  2. If agreement on a non-binding delivery date was reached after contract conclusion, the Customer shall be entitled to set us a reasonable delivery deadline in writing once the non-binding delivery date has been exceeded by two weeks. Only once this deadline has passed shall we be deemed in default of delivery.
  3. We expressly reserve the right to effect partial deliveries.
  4. In the event of weather-related disasters, including but not limited to drought, frost, hail, or any other unforeseen circumstances beyond our control, including but not limited to terrorist attacks, strikes, lockouts, war or war-like events, the delivery period shall be extended by a period equalling the duration of such circumstances. Strikes and lockouts within our own company are not covered by this provision. If the impediment to performance is not just temporary, we shall be discharged of our obligation to deliver
  • if the aforementioned circumstances render delivery impossible (See Section 275 (1) German Civil Code [BGB]);
  • if delivery or performance would require time, effort and expenditure which, having regard to the subject matter of the obligation and the principle of good faith, is manifestly disproportionate to the Customer’s interest in performance. When determining what may reasonably be required of us, it must also be considered as to whether we are responsible for the impediment.
  • If we are to effect the performance in person and, after weighing up the Customer’s interest in performance and the impediment to performance, performance cannot be reasonably required of us.
 
 

§ 8 Deliveries to foreign countries

 

 
  1. In the event of deliveries to foreign countries, the Customer undertakes, prior to contract conclusion and delivery, to inform us of the statutory safety regulations and phytosanitary regulations that apply with regard to the delivery of the goods to the country in question. All additional related costs shall be borne exclusively by the Customer.
  2. In the event of such deliveries to foreign countries, the Customer must ensure that he is in possession of all the permits required under public and private law and that no export restrictions of the countries concerned are breached by the delivery. All additional related costs shall be borne exclusively by the Customer.
  3. The Customer shall ensure that the order and delivery are in accordance with the statutory requirements of the countries concerned and, in particular, do not infringe any import restrictions. Otherwise, all additional related costs shall be borne by the Customer.
 
 

§ 9 Transfer of risk, transport, dispatch and packaging,
acceptance delay, unloading delay

 

 
  1. If the goods are dispatched at the request of the Customer, the risk of accidental loss and deterioration shall pass to the Customer upon delivery of the goods to the forwarder, carrier or any other person or institution instructed to effect delivery of the goods, irrespective of who is paying the transport costs.
  2. The goods shall be deemed to have been transferred to the Customer notwithstanding the fact that he is in default of acceptance.
  3. Should we carry out the transport of goods to the Customer or a delivery address specified by him, it is the responsibility of the Customer to ensure that the prescribed delivery route is accessible for heavy goods vehicles. Deliveries will only be made to the unloading point. Unloading is not included in the transport price.
  4. Transport insurance shall be taken out only at the express request of, and at the expense of, the Customer.
  5. 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.
  6. If the Customer is in default of acceptance, or culpably violates other obligations to cooperate, we are entitled to demand compensation for any losses incurred, including any additional expenses including but not limited to costs of supply, storage and repeated transport. Instead of asserting a claim for actual damages, we reserve the right to claim from the Customer without any verifiable proof, 30% of the invoiced amount in the form of a one-off compensation payment. Any further legal claims shall remain unaffected. The Customer shall be entitled to provide evidence that no such damage was incurred or that it was considerably less than that claimed.
  7. We reserve the right to claim compensation from the Customer for unloading delays of more than two hours for which he is responsible, and which result in us incurring additional delivery expenses and other lateness costs. 
 
 

§ 10 Retention of title

 

 
  1. We retain the title to all goods which we have delivered until full payment of all claims from a current business relationship have been made, including collateral claims. The retention of title shall also remain in effect if individual claims are included in a running account, and the balance is determined and acknowledged.
  2. Our retained ownership rights shall not be forfeited due to the fact that, as the Customer, the entrepreneur settles or plants the delivered plants on their own or third party property until resale. The reserved goods shall be stored, settled or planted separately from other plants and should be marked so as to make it clear that they originate from us.
  3. The Customer undertakes to treat the reserved goods with care at his own expense. In the case of living plants, this includes in particular correct storage, planting, fertilisation and irrigation.
  4. The Customer undertakes to inform us immediately if a third-party has access to the goods, such as in the case of seizure, or if the goods have been damaged or destroyed, stating the name and address of the creditor concerned. The Customer must notify us immediately of a change in ownership of the goods or a change of address.
  5. We have the right to withdraw from the contract and demand the return of the goods in case of a breach of contract by the Customer, in particular in the event of late payment, or failure to comply with an obligation set out in Sections 2 and 4 of these provisions.
  6. The Customer is entitled to resell the goods in the ordinary course of business. Any other disposal, in particular pledges or pledged property rights, is not permitted without our approval. If, when sold to a third-party purchaser, payment in respect of the reserved goods is not made immediately, the Customer is obliged, in turn, to only resell the goods subject to reservation of title. The entitlement to resell the reserved goods immediately becomes invalid if the Customer ceases to make payments or in arrears with payments to us.
  7. The Customer hereby assigns to us all claims and securities and ancillary rights due from end consumer or against third parties, which it has obtained from or in conjunction with the resale of the reserved goods. We hereby accept such assignment. The Customer is not entitled to enter into an agreement with his buyers which exclude or negatively affect our rights in any way or invalidate an advance assignment of the claim. In the event of the sale of the reserved goods with other items, the claim against the third-party buyer shall be deemed to be assigned to us to the amount of the delivery price agreed between us and the Customer, if the amounts attributable to the single goods cannot be determined from the invoice.
  8. The Customer must inform us immediately if he has already assigned claims from the resale of the reserved goods to third parties, particularly due to real or improper factoring, or has entered into any other agreements under which our present or future security rights pursuant to this clause might be impaired. Provided that it is non-genuine factoring we shall be entitled to withdraw from the contract and to claim the return of the delivered goods; the same shall apply for the genuine factoring, unless the Customer is entitled to decide freely with respect to the purchase price for the claim according to the contract.
  9. The Purchaser remains entitled to collect the claims assigned to us until we revoke that entitlement, which we may do any time. Upon our request, the Customer is obligated to provide us with the information and documents which are required for the collection of assigned claims and, if we do not do this ourselves, to immediately inform its buyers of an assignment to us.
  10. If the value of existing securities exceeds the secured claims by more than 10%, we are obliged to release securities of our choice at the Customer`s request.
  11. We rework or process, mix and/or combine the reserved goods subject to retention of title as manufacturers within the meaning of Section 950 of the BGB without any obligation. If the reserved goods are processed, mixed or inseparably connected with other items not belonging to us, we acquire co-ownership of the new product in the ratio of the invoice value of our merchandise to the invoice values of the other processed or combined items. If our goods are combined or mixed with other movable objects to form a unified object which must be deemed to be the main object, the Customer shall hereby assign to us ownership in the same proportion. The Customer shall grant ownership or co-ownership to us free of charge. The resulting co-ownership rights are considered to be a reserved commodity. Upon our request, the Customer is obligated at all times to provide us with information to pursue our ownership and co-ownership rights.
 
 

§ 11 Guarantee

 

 
No guarantee that the plants will take root and grow is issued. If the Customer expressly requests a growth warranty, this requires a separate agreement between us and the Customer. This agreement shall set out the respective guarantee particulars.
 
 

§ 12 Warranty for material defects, installation and removal costs,
Reporting obvious defects, limitation periods

 

 
  1. In the event of a defect, we are entitled at our discretion to either rectify the defect or arrange a replacement delivery (delivery of an item free of defect).
  2. If the subsequent fulfilment fails, the Customer may at his discretion either reduce the purchase price or rescind the contract. In the case of a minor contractual infringement, especially in the case of minor defects,the Customer does not have the right to withdraw.
  3. Warranty claims shall be excluded for damages that occur after the transfer of risk as a result of improper or negligent handling by the Customer, improper care by the Customer, unsuitable soil, weather-related influences (in particular frost and drought) or pests, to the extent that these factors are beyond our control.
  4. Moreover, the Customer has the right to withdraw from the contract under the following conditions:
  • if we refuse supplementary performance due to disproportionate costs,
  • if subsequent performance is unacceptable for the Customer,
  • if we did not render performance on the date set in the contract or within a specified period of time set in the contract (fixed date transaction) although, prior to contract conclusion, we were made aware by the Customer, or other circumstances associated with the contract conclusion, that timely performance was of the utmost importance for the Customer. 
    • - if we firmly and conclusively refuse supplementary performance or
    • - if in the case of a service not rendered in accordance with the contract, circumstances exist which justify immediate notice of termination after weighing the interests of both parties.
5. The Customer is not entitled to demand reimbursement from us for the removal of defective items          and the installation or mounting of repaired or replaced conforming items. Such compensation claims are expressly excluded unless the defect was fraudulently concealed by us.   
6. To exercise his warranty rights, the Customer must duly comply with his obligations to perform an inspection and give notice of defects as per Section 377of the German Commercial Code. The quantity of the delivered goods must be checked by the Customer immediately upon delivery. Shortfalls must be reported to us within 48 hours. The Customer shall report any evident non-compliance in writing within a period of 8 days after receipt of the goods; otherwise any warranty claim will be void. This shall not apply if we have fraudulently concealed the defect. The punctual dispatch of the notification of defects is sufficient for compliance with the warranty.
7. If a living plant is the subject of a sales transaction, the Customer is obligated to examine it before planting/settling, in particular for breakage, damage to the root or stem, drought damage etc., and report any such defects to us immediately.
8. Should we fail to render a due service or not as agreed in the contract, the Customer will be entitled to claim compensation from us, without a further deadline being required, if we have definitely and conclusively refused to render performance or if special circumstances exist which justify the immediate assertion of the damage claims under due consideration of mutual interests. Due to the costs associated with the removal of defective items and the installation of repaired or replaced items, the limitations pursuant to Section 5 of this clause shall apply.
9. Insofar as no other provisions in this clause are applicable with regard to obvious defects, the statutory period of limitation for any warranty claims for defects shall expire one year after delivery of the goods. 
 
 

§ 13 Varieties subject to patent and grade protection; varietal identity

 

 
  1. Customers buying varieties protected by patent and plant variety laws, as well as of those whose names are protected by trademark law, shall only resell the species with the original labels which were delivered together with the plants and not use the acquired plants or parts thereof for breeding purposes. The Customer must also refrain from selling such varieties protected by patent and plant variety laws abroad The Customer also undertakes to impose the aforementioned obligations on the Customers to whom it resells such goods.
  2. A guarantee of varietal identity is offered only upon the express request of the Customer. For fruit trees, the guarantee of authenticity of the fruit varieties and the requested documents are offered until the end of the fifth year from the day of delivery. The guarantee for berry plants, roses, and other trees extends only until the end of the second year from the date of delivery. In the case of rootstocks and young plants, we offer a guarantee of the authenticity of the variety delivered only through the end of one year from the day of delivery.
 
 

§ 14 Limitation of liability

 

 
  1. In the event of breaches of duty by us, our liability is limited to wilful intent and gross negligence. This shall also apply to dereliction of duty on the part of our legal representatives and/or vicarious agents.
  2. In the event of a merely negligent dereliction of duty, our liability and that of our vicarious agents shall be limited to the foreseeable loss or damage typical of the type of contract concluded. We shall therefore not be held liable for loss or damage which was not foreseeable as a possible consequence of the breach of contract at the time of contract conclusion. We shall also not be held liable for damages not caused to the delivery item itself; in particular, we shall not be liable for lost profits or other financial losses of the Customer.
  3. The foregoing provisions limiting and excluding liability (paragraphs 1 and 2 of this clause) shall not apply in the event of:
- intentional or grossly negligent dereliction of duty on our part or that of our vicarious agents,
- damage arising from loss of life, bodily injury or damage to the health (personal injuries) for which we or our vicarious agents are responsible,
- in case of delay, insofar as a fixed delivery date was agreed upon,
- in case of the provision of a guarantee for the properties of a product or the successful performance of a service or taking over a procurement risk,
- claims under the German Product Liability Act,
- a breach of cardinal duties (material contractual obligations). These shall include damages caused by us attributable to ordinary negligence in respect of such contractual obligations whose fulfilment is a prerequisite for enabling the proper fulfilment of the contract in the first place and upon whose observance the Customer regularly relies and may rely. However, we shall only be responsible insofar as the damage is typically associated with the contract and is foreseeable.
       4. Insofar as our liability is not limited anyway according to sections 1 and 2 of this clause and                       
provided that no exceptional circumstances pursuant to section 3 exist, our liability for any dereliction of duty shall be limited to 50% of the value of the supplied goods.
Further claims by the Customer shall be excluded. The right of the Customer to withdraw from the contract shall remain unaffected.
No changes in the burden of proof arise for the Customer as a result of this limitation  of liability.
 
 

§ 15 Final provisions

 

 
The law of the Federal Republic of Germany shall apply. The provisions of the UN Convention on Contracts for the International Sale of Goods do not apply. If the Customer is a purchaser is a merchant, legal person as defined in public law or special fund as defined in public law, the only court of jurisdiction for all disputes from this contract is our regional court. The same applies if the Customer does not have a general court of jurisdiction in Germany, or his address or habitual residence is not known at the time the action is filed. In all other respects, the statutory provisions apply. If any of the provisions contained in the contract with the Customer or in these General Terms and Conditions be or become invalid in full or in part, this shall not affect the validity of the other provisions.
         
Hamburg, 09. January 2018

Baumschule Lorenz von Ehren GmbH&Co.KG
 
 

Baumschule
Lorenz von Ehren GmbH

& Co. KG

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

Fax:
+49 (40) 76108-100

E-Mail: