General Terms and Conditions for Business Customers

Version dated 10 October 2019

Terms and conditions of sale, delivery, payment and plant variety protection of Saterplant GmbH

§ 1 General

1. Our general terms and conditions apply exclusively to all current and future legal relationships between us and our customers. We do not recognize any terms and conditions of the contractual partner that contradict or deviate from our general terms and conditions. We hereby expressly object to any non-assisgnment clause.
2. We expressly object to any terms and conditions of purchase or order or other general terms and conditions of business which deviate from, conflict with or supplement our terms and conditions of sale and delivery. Even if we are aware of these other terms and conditions, they shall not become part of the contract unless we expressly agree to their application in writing.
3. Our General Terms and Conditions of Business shall only apply to entrepreneurs according to § 310 Para. 1 BGB (GERMAN CIVIL CODE).

§ 2 Offers

1. Our offers are subject to change and non-binding. The order from our contractual partners is a binding offer.
2. We can accept this offer at our discretion within four weeks by sending an order confirmation or by sending the ordered goods to the customer within this period.
3. Only the customer’s written order and the order confirmation, if such was sent to the customer, are authoritative for the content of the contractual agreements. The customer must check the order confirmation without delay and inform us in writing of any deviations from his order.
4. For all declarations of the contracting parties in connection with the execution of the respective contract, the written form is expressly agreed. It is assumed that the customer’s order or the order confirmation contains all contractual agreements.
5. Failure in the propagation and/or cultivation in our company, in our suppliers’ companies or force majeure release us from the order, even if it has been confirmed. The same applies in the event that decisions by growers or licensors make it impossible for us to fulfil an order. In this case, an additional purchase on the part of the contractual partner cannot be demanded and our delivery obligation is limited to our own range. Exemption from performance shall only apply if we are responsible for the impediment to performance. A claim for damages on the part of the customer is excluded in these cases.
6. All goods ordered by the contracting partner and confirmed by us in an order confirmation will be produced for the contracting partner, if necessary, but in any case bindingly reserved and commissioned. Quantities confirmed in order confirmations must always be accepted by the contracting partner in full and within 14 days of receipt of the order confirmation, unless a different delivery window is specified in the order confirmation. In the event of non-acceptance of ordered goods, these shall be invoiced in full.
7. The prices in our price list are net prices ex-works. In addition, there are labelling, repotting, potting out, transport, insurance, packaging and licence fees, and the statutory value added tax.

§ 3 Delivery

1. Delivery is ex-works. The risk shall pass to the purchaser once the goods are made available for loading.
2. Any shipping costs will be invoiced separately, unless a different arrangement has been explicitly agreed in writing.
3. Partial deliveries are also permitted without the customer’s consent.

§ 4 Prices and Terms of Payment

1. The timeliness of payment is determined by the date of receipt of the amount by us. We therefore check together with external credit agencies (such as Atradius) on the basis of the personal data you have provided to determine whether payment against an open account can be granted with regard to payment and / or bad debt risks. If the credit agency sets us insufficient creditworthiness for your order (s) or if this is corrected downwards in the course of the ongoing updates, you are only entitled to payment against an open invoice in the amount of the creditworthiness limit currently set by the credit agency Disposal. In this case, we can only grant payment in advance when delivering / invoicing or accepting follow-up orders for amounts exceeding the current creditworthiness framework.
2. An agreed payment term of 30 days up to the amount corresponding to the limit of the credit insurance applies to the settlement of our invoice. For amounts in excess of this, delivery takes place step by step against receipt of payment. For the timeliness of the payment, it depends on the receipt of the amount by us.
3. The customer is automatically in default, without the need for a further reminder, upon expiry of the payment term (§ 286, II, No. 2 BGB). The invoice amount is subject to interest at the statutory interest rate after the payment term has expired.
4. The customer has to pay an amount of € 10.00 for each reminder, unless we can prove higher damage or the customer cannot prove lower damage. Section 353 of the German Commercial Code (HGB) remains unaffected.
5. In the event of default with more than one liability, the entire claims against our customer are due for payment immediately.
6. Sample plants including any shipping costs incurred will be charged at local prices, unless they are returned in a perfect, proper condition within 14 days or a different agreement has been made with the customer.
7. The customer is only entitled to set-off rights if their counterclaims have been legally established, are undisputed or have been recognized by us. In addition, the customer is only authorized to exercise a right of retention if their counterclaim arises from the same contractual relationship.
8. Should the customer be in arrears with their monetary consideration from another order of the business relationship, we shall be entitled to exercise a right of retention until the customer’s obligations from the previous order have been fulfilled, without it being necessary for our claim for payment to become due.

§ 5 Retention of Title

1. The delivered plant material shall remain our property in every growth phase, even after further processing, until full payment of all present and future claims arising from the business relationship. Any processing or transformation of the purchased item by our customer shall always be carried out on our behalf. If the purhased item is processed with other objects not belonging to us, we shall acquire co-ownership of the new object in the ratio of the value of the object of sale to other processed objects at the time of processing.
2. If the purchased item is mixed with other items that do not belong to us, we acquire ownership of the new item at the time of mixing. If the customer’s item is to be regarded as the main item, the customer shall transfer co-ownership to us on a pro rata basis.
3. Our customer is revocably authorized to resell. Our customer assigns to us in advance all claims to which they are entitled from the resale or for any other legal reason, also to the extent, without any exception, that the goods have been processed. If the processed product contains, in addition to the goods delivered by us subject to retention of title, only such items which either belonged to the customer or which were delivered subject to simple retention of title, our customer hereby assigns the entire principal claim to us. If a current account relationship exists between us and our customer in accordance with § 355 of the German Commercial Code (HGB), the advance assignment shall also refer to the recognized balance.
4. In the other case, i.e. if the advance assignment to several suppliers coincides, we shall be entitled to a fraction of the claim corresponding to the ratio of the invoice value of our delivery to the invoice value of the other processed items.
5. Withdrawal from the contract is not required in order to assert the reservation of title, unless our customer is the consumer.
6. Insofar as the assigned claim exceeds the realizable value of the goods sold and subject to retention of title by 20%, the claims shall be assigned to the purchaser. The purchaser is entitled to collect the claim assigned to us themselves as long as they duly fulfill their payment obligations to us. We are entitled to disclose the ownership by way of security of the assignment and to collect the claims of the purchaser in our own name. The purchaser undertakes to cooperate in this respect and to disclose the names of their customers.

§ 6 Specially Marked Varieties
All specially marked varieties are legally protected varieties. They may not be propagated. The plant material supplied by these varieties may only be used for flower cultivation. The purchaser undertakes not to sell, exchange, lend or give away any plants or propagable plant parts of the protected varieties. All varieties bearing a variety protection mark are subject to a licence fee, the amount of which is specified in the respective valid price list. Reproduction of these varieties is not permitted without special permission.

§ 7 Dimensions and Samples

1. Dimensions are generally approximate. Deviations in the order of 10% upwards or downwards are permissible. The quality regulations for nursery plants of the Forschungsgesellschaft Landschaftsentwicklung Landschaftsbau e.V. (FLL) apply to the plants.
2. Samples only show the average condition. Not all plants have to turn out like the sample.

§ 8 Delivery Dates

1. Delivery date requests made by the customer in enquiries or when placing an order shall be considered non-binding. Delivery dates stated in our order confirmations shall be deemed binding – subject to any timely self-delivery, incidents releasing us from the order pursuant to § 2 item 5 of these GTCs, as well as weather conditions suitable for intact plant loading and intact transport.
2. In the event that the delivery of plant material to us fails, we shall be released from our obligation to perform. Until this point in time, the customer remains obliged to accept the goods ordered.

§ 9 Liability for Defects

1. The goods are to be checked for condition, defects and quality immediately upon receipt. Obvious defects must be reported in writing within three days. In the case of hidden defects, the period begins after they are discovered. Complaints received by us at a later date shall be disregarded. The customer’s warranty claims are excluded in this respect. As plant material is exposed to a wide variety of influences during further processing and cultivation, no liability can be accepted for defects occurring later, in particular plant diseases.
2. The agreed quality of the goods owed by us results exclusively from the contractual agreements with our customer and not from other advertising statements, brochures, advice and the like. The assumption of a guarantee, e.g. according to § 443 BGB (German Civil Code), is not associated with this. This applies in particular to the growing of the plants and to growth and flowering results, even if these are described in catalogues. No guarantee is given for the authenticity of the variety of the plants supplied, but this can be expressly agreed with our customer. In this case, our liability is limited to the net invoice amount from the delivery in question, unless we can be proven to have acted with gross negligence or intent.
3. To the exclusion of all further claims, we shall be liable for defects as follows:
4. If a defect is notified by our customer, our customer shall give our representatives the opportunity to inspect the object of the contract which is the subject of the complaint and, in particular, to compare the plants delivered by us with the customer’s other plants. If our agents are denied this opportunity, any warranty claims with regard to the reported defects are void.
5. We guarantee that the goods are free of defects for one year from the date of delivery, unless a mandatory longer statutory warranty period applies.
6. The transport company is responsible for transport damage. Transport damage must be ascertained in the presence of the transport company and immediately notified to the transport company and to us in writing.
7. We do not provide any warranty for improper use or handling of the goods. Warranty claims are also void in the event of damage to or destruction of the goods due to improper handling or storage after the transfer of risk.
8. Subsequent performance shall be effected, at our discretion, either by remedying the defect or by delivery of a defect-free item. Our customer shall grant us reasonable time and opportunity to remedy the defect. If this is refused, warranty claims of any kind against us are void. If the subsequent performance fails several times, our customer can also withdraw from the contract or demand a reduction in price. Further claims against us or our agents, including all claims for damages, on whatever legal grounds, are excluded, unless we have acted with gross negligence, or personal injury has occurred. We shall not be liable for any unforeseeable damage.

§ 10 Claims for Damages by the Customer
Claims for damages on the part of our customer are also excluded to the extent that the customer can make a claim against us pursuant to § 445a of the German Civil Code (BGB) for reimbursement of expenses which the customer was obliged to pay to the consumer or another entrepreneur. The claim for reimbursement of expenses according to § 445a BGB (German Civil Code) only exists if the customer has in turn effectively obligated their customer according to § 9 number 1 of these GTC. If the goods delivered by us are treated, processed or otherwise changed by our customer, we are no longer a supplier according to § 445a BGB, so that our customer is not entitled to claims for reimbursement of expenses under this provision.

§ 11 Assignment

1. We are entitled to assign the claims arising from our business relationship.
2. Our claims have been assigned to BFS finance GmbH, Verl. Payments with debt-discharging effect can only be made to BFS finance GmbH. The bank details can be found in the note on the invoice.

§ 12 Choice of Law, Place of Jurisdiction and Place of Performance

1. The law of the Federal Republic of Germany shall apply. The UN Convention on Contracts for the International Sale of Goods shall not apply.
2. To the extent permitted by law, the place of performance and for delivery and payment as well as the exclusive place of jurisdiction shall be the registered office of our company.

§ 12 Severability Clause
Should any of the above provisions be invalid, it shall be replaced by another provision which comes as close as possible to the economic sense and purpose of the invalid provision. In all other respects, all other provisions shall remain valid.