I. General Provisions / Placement of Orders

1. These Terms and Conditions form an integral part of all supply contracts, agreements and offers entered into or made by us, hereinafter referred to as the “Seller”, with businesses within the meaning of Section 14 of the German Civil Code (BGB), hereinafter referred to as the “Buyer”. These Terms and Conditions shall be deemed accepted at the latest upon placement of an order or acceptance of a delivery.

2. Any deviating general terms and conditions or purchasing terms and conditions of the Buyer shall not apply, even if they have not been expressly objected to in an individual case. Deviating agreements shall be valid only if confirmed by the Seller in writing.

3. All offers made by the Seller are non-binding and subject to availability. Orders placed by the Buyer shall become binding on the Seller upon written confirmation or execution of the order.

4. If an order placed by the Buyer constitutes an offer within the meaning of Section 145 BGB, the Seller may accept such offer within 14 days.

II. Prices / Terms of Payment

1. Prices are quoted in euros (€), ex works at the Seller’s registered place of business, plus the statutory value-added tax applicable at the time of delivery, without deductions. Previous price lists shall cease to be valid upon publication of new price lists.

2. Unless otherwise specified in the order confirmation, the purchase price shall be payable within 10 calendar days of the invoice date. In the event of late payment, default interest shall be charged at the statutory rate. The Seller reserves the right to claim additional damages resulting from the delay.

3. Cheques and bills of exchange shall be accepted only on account of performance and subject to successful encashment. Any expenses arising therefrom shall be borne by the Buyer.

4. Sales representatives and delivery drivers are authorised to accept payments only if they are in possession of written authorisation.

5. Set-off against payment claims of the Seller is excluded unless the Buyer’s counterclaims are undisputed or have been established by a final and binding court judgment. The exercise of rights of retention against claims of the Seller is excluded unless the Buyer’s counterclaims arise from the same delivery.

6. In the event of a material deterioration in the Buyer’s financial circumstances, the Seller shall be entitled to make the performance of its contractual obligations conditional upon advance payment of the agreed remuneration or the provision of appropriate security. If the Buyer fails to comply with this requirement within a reasonable additional period, the Seller shall be entitled to withdraw from the contract and claim damages.

III. Shipping and Packaging / Transfer of Risk

1. Shipping shall be carried out at the Buyer’s expense and risk. Packaging shall be charged at cost.

2. If shipment is delayed due to circumstances for which the Buyer is responsible, the risk shall pass to the Buyer upon notification by the Seller that the goods are ready for dispatch.

3. If the goods are shipped in CC containers, the Buyer shall return the CC containers to the Seller without undue delay upon receipt of the goods or provide the Seller, in exchange, with containers of the same type and identification code. If the Buyer culpably fails to fulfil this obligation, the Seller shall be entitled, from the 30th calendar day after receipt of the container onwards, to charge the Buyer reasonable compensation for the use of the container, determined at its equitable discretion in accordance with Section 315 BGB. In the event of damage to or loss of containers in the Buyer’s possession, the Buyer shall be liable to the Seller in accordance with the applicable statutory provisions.

IV. Delivery Time / Obligation to Deliver

1. Delivery dates and delivery periods may be agreed as binding or non-binding. Delivery dates shall be deemed binding only if the Seller has expressly confirmed them as binding in writing.

2. Unless otherwise agreed, delivery shall be made from the Seller’s registered place of business within the agreed delivery period. If a delivery period is not met, the Buyer may withdraw from the contract, provided that the Buyer has first granted the Seller a reasonable additional period for performance.

3. The Seller shall be entitled to make deliveries in instalments, provided that this is reasonable for the Buyer. However, the Buyer shall have no entitlement to partial deliveries unless the Seller has expressly agreed to them in the individual case.

4. If the variety specified in the order is no longer in stock, the Seller shall be entitled to supply similar, equivalent varieties instead, unless substitute delivery has been expressly excluded in the order.

5. If delivery becomes impossible due to natural disasters or events of force majeure, such as strikes, lockouts, power failures or similar operational disruptions, war or war-like events, or other impediments beyond the Seller’s control, the Seller’s obligation to deliver shall cease to apply.

6. The Seller shall be released from its delivery obligations to the Buyer, in whole or in part, if the Seller has not been supplied, or has been insufficiently supplied, by its own supplier. In such cases, the Seller undertakes, upon the Buyer’s request, to assign its claims against the supplier to the Buyer. Any further claims by the Buyer, beyond the right to withdraw from the contract, are excluded unless such claims are based on wilful misconduct or gross negligence on the part of the Seller or its employees.

V. Warranty / Liability

1. Samples are intended to represent only the average quality of the goods. The Seller does not undertake to supply all plants in exact conformity with the sample.

2. A guarantee of varietal authenticity shall be provided only upon the Buyer’s express request. In this respect, the Seller’s liability shall be limited to the net invoice amount. No further claims shall be permitted unless gross negligence or wilful misconduct on the part of the Seller can be proven in the individual case.

3. As a general rule, no guarantee is given that the plants will take root and grow successfully, unless, at the Buyer’s express request, a separate establishment guarantee has been expressly agreed upon for additional remuneration. Where such a guarantee has been agreed, the warranty shall be limited to the value of the plants at the time of delivery.

4. Defects that are apparent upon proper inspection of the plants at the time of delivery must be reported by the Buyer to the Seller without undue delay and, in any event, within 5 working days. The defects must be described in detail. Defects that become apparent only at a later date must be reported without undue delay upon discovery.

5. In the event of justified complaints regarding defects, the Buyer’s claims shall initially be limited to replacement delivery. If replacement delivery is impossible or unsuccessful, the Buyer may demand a reduction in the purchase price or withdraw from the purchase contract.

6. Claims for damages, irrespective of their legal basis, in particular claims arising from breaches of contractual obligations or from tort, are excluded. This exclusion of liability shall not apply to damages resulting from injury to life, body or health; cases of wilful misconduct or gross negligence; or breaches of material contractual obligations (cardinal obligations), meaning obligations that the contract, by virtue of its content and purpose, specifically intends to impose on the Seller or whose fulfilment is essential for the proper performance of the contract and on whose observance the Buyer regularly relies and is entitled to rely.

7. In the event of a breach of such material contractual obligations, the Seller’s liability shall be limited to damages that were reasonably foreseeable, unless the breach was caused by wilful misconduct or gross negligence, involves the absence of warranted characteristics, or a limitation of liability is prohibited by law, for example in the case of claims under the German Product Liability Act (Produkthaftungsgesetz).

VI. Retention of Title

1. The plants delivered shall remain the property of the Seller until all purchase price claims to which the Seller is entitled against the Buyer arising from the business relationship have been fully satisfied.

2. The retention of title shall not be extinguished if the Buyer temporarily stores, heelds in, or plants the delivered plants on the Buyer’s own or third-party property pending their resale or final use. The Buyer shall not be required to handle the plants in such a way that they can be identified as having been supplied by the Seller. If necessary, the Buyer undertakes to allow the Seller access to the relevant business records. If the delivered plants are mixed with other plants of the same kind, the Seller shall acquire co-ownership of the mixed plants in proportion to the invoice value of the plants supplied by the Seller.

3. The resale, processing, pledging or transfer of ownership by way of security of the delivered plants shall be prohibited until the Seller’s claims have been satisfied, unless the processing or resale takes place in the ordinary course of the Buyer’s business and the Buyer is not in default of payment.

4. The Buyer hereby assigns to the Seller, by way of security, all claims arising from the resale of the goods subject to retention of title or from any other legal grounds relating to such goods (e.g. insurance contracts or tort claims), including all ancillary rights and securities, up to the value of the goods subject to retention of title. In such cases, the Buyer undertakes to make a corresponding entry in its books, on the relevant invoices and in the list of outstanding accounts receivable for each individual claim, specifying the date of assignment and the assignee.

5. The Seller revocably authorises the Buyer to collect, in the Buyer’s own name and on the Seller’s behalf, the claims assigned to the Seller. This authorisation to collect may be revoked only if the Buyer fails to duly fulfil its payment obligations.

6. Upon the Buyer’s request, the Seller shall release, at the Seller’s discretion, such security as exceeds, on a non-temporary basis, 20% of the secured claim in realisable value.

7. Retention of title shall not release the Buyer from liability for the loss or accidental deterioration of the goods subject to retention of title after they have come into the Buyer’s possession.

VII. Data Protection

1. The Buyer acknowledges that customer data necessary for the conduct of business, such as name, address and other relevant information, are stored electronically by the Seller in its data processing system. Such data are protected against misuse in accordance with the provisions of the German Federal Data Protection Act (Bundesdatenschutzgesetz). The Buyer consents to the storage of this data.

2. The Seller may make the establishment and continuation of the contractual relationship with the Buyer conditional upon a credit insurer providing insurance cover for the Buyer. The Buyer agrees that the Seller may transmit to the credit insurer, in accordance with Section 28b of the German Federal Data Protection Act (Bundesdatenschutzgesetz), customer data relevant to the provision of insurance cover, including personal data. Upon the Buyer’s request, the Seller shall disclose the name and address of the credit insurer.

VIII. Place of Performance / Place of Jurisdiction / Applicable Law

1. Unless otherwise agreed, the Seller’s registered place of business shall be the place of performance for all deliveries.

2. The laws of the Federal Republic of Germany shall apply, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).

3. The place of jurisdiction for all claims arising out of the contractual relationship shall be the Seller’s registered place of business.