These terms of trade shall apply to all present and future business relations and exclusively vis-à-vis entrepreneurs within the meaning of § 14 BGB. Any conflicting, supplementary or deviating General Terms and Conditions and side agreements shall be binding only if expressly agreed as valid in writing.
Terms and conditions of sale and delivery
All orders shall be handled under the official address of the customer. If the delivery address differs from the official address please state such other address in any case. All orders will be confirmed by us in writing and will then be binding. No separate re-confirmation of the delivery date will be given. In the case of orders placed on short notice the delivery of products under orders not yet confirmed shall be considered an order confirmation.
Elsner pac® Vertriebsgesellschaft mbH does not assume liability for any damage accruing if you advertise for the ordered products or incur obligations vis-à-vis third parties before you have received our unconditional, formal order confirmation or delivery promise.
Right of rescission
If the customer fails to pay for deliveries already made, or refuses the acceptance of confirmed deliveries without any substantial reason, or if it must be feared that he cannot meet his obligations, we shall have the right to rescind orders that had already been confirmed.
Cancellation and alteration of production orders
Orders that have been placed and confirmed can only be cancelled on mutual agreement. We shall have the right to invoice the customer for lost profit at a rate of up to 5% of the contract value until eight weeks before the date, and up to 10% of the contract value until four weeks before the date of delivery.
Alterations of orders that have been placed, confirmed and fixedly scheduled are subject to mutual agreement as well and possible only up to five weeks prior to delivery.
Cancellation and alteration of laboratory production orders
Laboratory production necessitates long preparation times and is an exclusive order production. In the case of a cancellation or alteration of orders placed, the work performed to such date will be fully invoiced for.
Prices and payment
All prices agreed are net prices plus statutory valueadded tax and are understood ex producing market garden, excluding licence and freight cost as well as packaging in the case of semi-finished products, elite material and unrooted cuttings. Elsner pac® Vertriebsgesellschaft mbH has the right to send the goods cash on delivery or request advance payment. All invoiced amounts shall become payable gross and without any deductions within 30 days from the date of invoice. If paid during 7 days we grant 2% discount. Delay in payment shall become effective without reminder 30 days after the date of invoice. In case the term of payment is exceeded, we charge interest on arrears under § 247 BGB/Civil Code; the interest rate claimed is 8% higher than the basic interest rate. For the first reminder we shall charge an amount of € 1.50, for the second reminder € 3.00, and for the third reminder € 5.00. Each payment shall be booked against the oldest invoice. Cheques shall only be valid when duly honoured. If the products (except ready-for-sale ware) are collected and immediately paid, we grant 3% discount on the invoiced amount unless the purchaser is in default of any other obligations vis-à-vis Elsner pac® Vertriebsgesellschaft mbH, Elsner pac Jungpflanzen Thiendorf GbR and Elsner pac® Jungpflanzen GbR.
Reservation of ownership
Unless agreed otherwise, goods supplied shall remain our property until all claims due to us under the business relation with the purchaser, and claims arising in future, have been paid in full. In the event of resale, the purchaser shall, by way of security, assign to us, at the time of concluding the supply contract and until all our claims on the purchaser have been paid off, any present and future claims on his clients arising from the resale and undertakes to reveal to us, on request, the names of third-party debtors and the amounts due from these debtors. We shall not collect the assigned claims as long as the purchaser meets his payment obligations and his financial situation does not deteriorate. If supplies whose property we have reserved are processed, refashioned or combined with other goods, we shall acquire direct ownership of the resulting goods. Transfer of ownership in reserved goods shall not occur when the remainder of the purchase price has been paid, but only when all our claims from the business relation have been settled. If the a.m. reservation of ownership is void under the law of the country of destination, the purchaser shall participate in establishing security rights in our interest and pursuant to the regulations applicable in his country.
Warranty cannot be undertaken for the taking root and further growth of the plants because their growth will depend on the prevailing ambient conditions which are beyond our control. We do not provide warranty for a possible segregation of chimaeras after in-vitro reproduction as this is a natural process, and we do not assume responsibility for any changes in variety properties which are not genetically caused. Any advisory service shall be rendered to the best of our knowledge but without warranty. In the event of strikes, heating failures and Force Majeure we shall completely or partly be released from the delivery true to schedule.
Notice of defects
Any complaints in respect of the size, classification or delivered quantities of the ware can only be considered if such complaint is received in writing or over the phone within 24 hours for unrooted cuttings, and within three days for young plants and meristem plants from the laboratory. Please indicate the packer number which you find on the box, or copy the label (for unrooted cuttings). Complaints notified over the phone must be filed in writing within three days by the customer. Complaints for defects that are not visible when the plants are delivered – such as mixing of varieties or a poor health condition – shall be made in writing immediately upon detection. Pathogenic tests of the health state shall be conducted within 3 weeks from the delivery. Immediately upon receipt of the plants, the customer assumes full responsibility for maintaining the health state of the delivered plants and the plants reproduced from them. We shall undertake liability in principle only up to the amount invoiced for all defects notified in due time and correctly in accordance with this section.
Damage in transit
Our responsibility ends as soon as the plants leave our production site, and is transferred to the carrier. If so requested, the transport will be agreed with the contracting party. The plants are insured against loss or damage in transit. The consignee is under the obligation to inspect the plants for intactness, proper condition and delivery to schedule before signing the shipping documents. In case of damage in transit or delayed arrival, the recipient shall make a respective note on the delivery receipt, send it without delay to us, and indicate the exact scope of the damage. We cannot claim damages from the insurance company until these conditions are met; the general information "accepted with reservation" does not satisfy the insurer.
Replacement of varieties and deliveries
Unless expressly excluded by the customer we shall reserve the right to deliver similar and equivalent replacements for the varieties even if the ware was ordered in good time.Orders placed at short notice, i.e. up to four weeks before the date of delivery, shall be basically subject to the replacement of varieties, irrespective of the order confirmation. An order shall be deemed to have been met if the ware has left the producing market-garden up to seven days before or up to seven days after the confirmed date of delivery.
Special terms and conditions for legally protected varieties
If an order placed contains varieties that are protected by law these may only be used for the production or sale of ready-for-sale ware. If it is intended to reproduce the plants for the same purpose, this shall be agreed with the licence holder or the licensing agency authorized by the former. The number of sold plants is to be reported. The royalties will be separately charged. Any reproduction for the purpose of the sale of unrooted cuttings, young plants, semi-finished and finished goods shall only be allowed with a valid licence agreement with the owner of the protected varieties. If mutations are detected in the culture, the grower shall undertake to notify the owner of the protected variety of the detection of the mutation. The latter can by himself or through third parties inspect the mutations at the grower’s facility and request plant material of the mutation. The grower shall only be allowed to economically exploit the mutation or essential derivative varieties with the written consent of the original variety owner. Our distributor charges a fee for the right to use its intellectual and industrial property (variety protection and trademark protection) rights, copyrights and right of publicity. This fee is separately shown in the invoice as a royalty.
Place of performance/jurisdiction/safeguarding clause
The place of performance for all contractual services agreed between us and the purchaser shall be Dresden. German law shall apply exclusively, U.N. sales law is expressly contracted out. The place of jurisdiction for any disputes arising from contractual relations between us and the purchaser shall be Dresden, unless another exclusive place of jurisdiction has been legally specified. Should a provision or clause contained in these General Terms and Conditions or a contract concluded between us and the purchaser be or become void in whole or part, the remaining contract shall not be affected. The parties undertake to replace the provision or clause in question by relative provisions coming as close as possible to the sense, spirit and purpose of this agreement.