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General terms and conditions of Kientzler Gartenbau GmbH & Co. KG
  1. General information
    1. The following general terms and conditions (GTC) apply to all sales made in the course of our business operations, unless otherwise stated in the offer or in the order confirmation.
    2. Our terms and conditions apply exclusively. Conditions of the purchaser which conflict with or deviate from our general terms and conditions and additional agreements are only binding if we have expressly agreed to their validity in writing.
    3. The following terms and conditions apply exclusively to entrepreneurs within the meaning of § 14 BGB, German Civil Code.

  2. Offer - conclusion of contract
    1. The customer's period of commitment to the application submitted by him is 2 weeks from the submission of the offer, unless he otherwise determines when submitting the application.
    2. A contract is only concluded when we issue a written confirmation or carry out the delivery or service without such confirmation.
    3. We have the right to adjust varieties, quantities and delivery dates to the actual delivery options in our order confirmations. Such changes are considered agreed if the customer does not object within 8 calendar days of receipt of the order confirmation. This only applies if the change appears reasonable for the customer, taking into account our interests.

  3. Delivery
    1. Agreed delivery dates refer to the provision of the young plants for handover or shipping in our production facility in D-55457 Gensingen.
    2. As long as the correct and timely delivery by our suppliers has not taken place, our delivery obligation is suspended. This only applies in the event that we or our suppliers are not responsible for the missed deadlines.
    3. Shortage of raw materials or energy, strikes, lockouts, traffic disruptions, official orders or other public law restrictions, operational disruptions, all cases of force majeure and other circumstances which are neither our fault or our vicarious agents and which we could not have foreseen, release us for the duration of their existence from our delivery obligation, insofar as these circumstances affect our ability to deliver.
    4. In the cases of sections 3.2 and 3.3, we are entitled to withdraw from the contract without any obligation to pay compensation if the performance has become impossible or unreasonable for us or if an end to the obstacle to performance is not in sight. This only applies if we or our vicarious agents are not responsible for the obstacle to performance and if we have informed the customer immediately of the aforementioned obstacles to performance. In the event of withdrawal, we are obliged to immediately reimburse any consideration already paid by the customer.

  4. Inspection and notification requirements
    1. We are entitled to execute orders in partial deliveries, unless otherwise agreed. The customer can justifiably refuse to accept partial deliveries if he is objectively not interested in them. The refusal of acceptance must be declared in writing; with the refusal, the lack of objective interest must be justified in writing.
    2. The purchaser's statutory obligation to inspect and give notice of defects also extends to phytosanitary properties, i.e. especially on viroses, pest infestation and diseases. If the customer suspects the existence of such phytosanitary properties, he must proceed as described in Section 10.4. In addition - especially with regard to his duty to mitigate damage - he must separate the possibly infested or defective plants from other plants - both those supplied by us and those already available to the customer - in order to avoid spillover.
    3. In the event of obvious defects, incorrect deliveries or shortages, the customer must notify us immediately, at the latest within 7 calendar days. The notification must be made in writing.

  5. Prices u. Delivery modalities
    1. Unless otherwise agreed, all prices from our production facility in D-55457 Gensingen are exclusive of any freight costs that may arise. Shipping will only take place at the request of the customer; In this case, all freight / transport costs will be borne by the customer and will be charged by us.
    2. The risk of accidental loss of the goods passes to the purchaser when they are handed over to the carrier.
    3. Transport packaging will be charged - unless otherwise agreed. If the return is undamaged by the customer, a credit note will be issued.
    4. We take back packaging material used for deliveries in Germany. After prior arrangement, this material can be handed over at our facility in D-55457 Gensingen or we can arrange picking up.
    5. The purchaser loads the goods in our production facility in D-55457 Gensingen. This also applies in the event that the customer has the goods picked up. Insofar as we support the purchaser or his representative with loading, we act within the scope of a courtesy. The purchaser or his representative is solely responsible for proper loading and, in particular, compliance with the regulations for securing cargo.
    6. The price list valid at the time of the binding order applies, unless otherwise agreed. Prices are understood from our production facility in D-55457 Gensingen, excluding freight, packaging and statutory sales tax, unless otherwise agreed.
    7. Discounts and other discounts require an express prior written agreement. They are to be agreed anew for each contract.

  6. Terms of payment
    1. If there is a statutory change in sales tax after the contract has been concluded, the sales tax will then be calculated at the statutory rate.
    2. If partial deliveries are made in accordance with Section 4.1 or in consultation with the customer, we are entitled to invoice each partial delivery individually. The calculation is based on the agreed individual prices.
    3. Payments are only to be made to one of our accounts specified on the invoice.
    4. Payments by the purchaser are always counted towards the oldest outstanding claim - unless otherwise agreed in individual cases. The crediting takes place according to the legal regulation of § 367 BGB, d. H. first on the costs, then on any interest and finally on the main claim. Any other performance determination of the debtor is irrelevant.
    5. Checks are only accepted on account of performance. Payment is only deemed to have been made when and insofar as the amount has been irrevocably credited to our account. Any fees incurred by the bank, especially in the event of non-redemption, will be borne by the customer.
    6. Bills of exchange are also only accepted on account of performance. All expenses and costs, including the costs of submitting a possible protest, shall be borne by the customer. We are not obliged to submit them in time or to raise a protest.

  7. Delay
    1. If the customer is in default of payment, we can make further deliveries and services - also from other contracts - dependent on advance payments or security deposits at our discretion; we are also entitled to disclose all assignments (Section 9.1) to all customers of the customer and to request direct payment from us. This does not apply if the customer is only in arrears with small payments and there are no doubts about his solvency; A backorder is considered to be small if it is a maximum of 5% of the total order volume from which it originates.
    2. The customer can only offset any counterclaims if they are either undisputed or legally established.

  8. Retention of title
    1. We reserve ownership of the delivered goods until all of our claims against the customer arising from the business relationship, including future claims, also from contracts concluded at the same time or later, have been settled. This also applies if some or all of our claims have been included in a current invoice and the balance has been drawn and recognized.
    2. The property reserved in clause 8.1 is not lost if the customer temporarily stores, drives in or plants the delivered plants until they are resold or finally used. The customer is obliged to proceed in such a way that the plants can be determined to have come from us. The customer undertakes to give us access to the relevant business documents if necessary. If the goods subject to retention of title are processed, combined, mixed or blended with other goods that do not belong to us, we shall be entitled to the co-ownership share in the new item in the ratio of the value of the goods subject to retention of title to the other processed goods at the time of processing, combining, mixing or blending. If the purchaser acquires sole ownership of the new item, the contracting parties agree that the ordering party shall grant us co-ownership of the new item in the ratio of the value of the processed, combined, mixed or blended goods subject to retention of title and shall store them for us free of charge.

  9. Assignment
    1. The customer is entitled to resell the goods delivered by us in the ordinary course of business. In this case, he already assigns to us the claim against his customer arising from the resale. We accept the assignment.
    2. If the customer sells goods subject to retention of title after processing, combining, mixing or blending with other goods that do not belong to us, the resulting co-ownership share in the new item is related to the value of the goods subject to retention of title to the other processed goods at the time of processing, connection , Mixing or blending. The customer hereby assigns the resulting claims to us. We accept the assignment.
    3. The assignment of clauses 9.1 and 9.2 is limited in amount to our claim from the delivery of the resold goods including any costs, interest and damage caused by delay insofar as these have already been invoiced and notified to the customer. At our request, the customer must disclose to us all the resale of goods that have not yet been paid for, name the recipient in full and provide us with all the information necessary for the immediate enforcement of the claims assigned to us.
    4. The customer is obliged to ensure through suitable agreements with his customers within the scope of what is legally permissible that the claims assigned to us are not lost by offsetting, but are only fulfilled by payment; if necessary, he must point out the assignment.
    5. The customer is entitled to collect claims assigned to us from his customers. He is obliged to immediately forward payments received from his customer up to the amount of the claims due to us. If the purchaser collects claims assigned to us from his customers without forwarding them to us accordingly, we are entitled to disclose the assignment with regard to all claims - also against other customers - and to request direct payment to us.
    6. If third parties - particularly in the context of foreclosure or insolvency law measures - want to access the goods in our ownership, the customer must point this out to our property and provide the underlying documents. At the same time, he must inform us immediately. If we incur costs in the defense against alleged third-party claims on the goods in our ownership, the customer must replace them, unless they are actually replaced by third parties; We will assign any claims against third parties to the purchaser step by step.
    7. If the value of the collateral granted to us by the customer exceeds the total of our secured claims by more than 15%, we are obliged to release the collateral exceeding 15% at the customer's request. We select the securities to be released at our reasonable discretion.

  10. Warranty
    1. If the customer resells the goods delivered by us and his purchaser or the last purchaser in the supply chain is a consumer within the meaning of § 13 BGB, the purchaser can contact us in accordance with the statutory provisions of §§ 478, 479 BGB by means of a so-called supplier recourse take advantage of. If there is a justified case of supplier recourse, the limitations of our warranty obligations contained in these terms and conditions do not apply.
    2. A prerequisite for the supplier recourse is that the goods we deliver are sold unchanged to the consumer along the entire supply chain. If the goods have been cultivated in the meantime or have otherwise been changed or handled improperly, a supplier recourse will not be considered. The supplier recourse presupposes that the defect present when the goods are handed over to the consumer also represents a defect in the relationship between us and the customer.
    3. Warranty claims expire after 12 months. Deviating from this, the statutory limitation periods apply if the customer claims us in the context of the supplier regress (sections 10.1 and 10.2).
    4. If the customer indicates defects - regardless of whether according to section 4 or section 10 - he has to give us the opportunity to examine them himself and / or to have them examined by third parties commissioned by us. If the ordering party itself commissions third parties - in particular experts - to examine the goods or determine any defects, we are only obliged to assume the costs incurred if an immediate assessment is actually objectively required and we cannot be reached in time.
    5. Claims for damages by the purchaser are excluded - subject to the regulation in section 12.
    6. If the purchaser is entitled to supplementary performance by delivering a defect-free item, we are entitled to adjust varieties to the actual delivery options if the deviation is reasonable for the purchaser.

  11. Transport damage
    1. The customer is obliged to examine the goods - if necessary in appropriate random samples - for damage in transit upon receipt. If transport damage is found, the purchaser must immediately produce a protocol in which the condition of the goods and the transport damage are recorded. The protocol must be presented to the transport personnel for signature.
    2. The customer is obliged to report any damage in transit immediately to the carrier by submitting the protocol (Section 11.1.) And to notify us by copying and enclosing the protocol.
    3. We are not liable for damage in transit - subject to section 12 - unless the damage was caused by us or one of our agents deliberately or through gross negligence.

  12. Claims for damages
    1. Insofar as the purchaser is entitled to claims for damages or reimbursement of expenses due to defects that are not excluded by the above agreements or clause 12.2, they expire after 12 months.
    2. All other claims for damages or reimbursement of expenses on the part of the purchaser - with the exception of those specified in Section 12.3 - for whatever legal reason, in particular due to breach of obligations arising from contractual relationships or unlawful acts, are excluded.
    3. Claims for damages by the purchaser are not excluded with regard to
      1. Damage from injury to life, limb or health that is based on a negligent breach of duty by us, a negligent or willful breach of duty by our legal representatives or our vicarious agents
      2. other damage which is based on a grossly negligent breach of duty by us or an intentional or grossly negligent breach of duty by our legal representatives or our vicarious agents.

  13. Premature termination
    1. If the purchaser withdraws from the contract or if the purchaser cancels the contract or if the contract is otherwise terminated prematurely, we are entitled before the start of production to request an amount of 5% of the original order value as remuneration for services and as a replacement for expenses that were provided or have arisen prior to the withdrawal or the termination. After the start of production, this amount increases to 50% of the original order value due to the regular costs of fruitless transplantation of seeds.
    2. The customer is entitled to prove facts that lead to a lower performance remuneration or to a lower reimbursement of expenses according to section 13.1.
    3. We reserve the right to assert any claims for damages.

  14. Advice / crop protection / cultivation
    1. Planting advice, plant protection advice and other advice are not the subject of purchase and delivery contracts. Unless they are expressly made the subject of the contract, they only provide non-binding information. They do not release the customer from his obligation to properly and expertly process the goods we deliver and the necessary care, in particular when using crop protection and fertilizers , Growth and inhibitors.
    2. Planting instructions and other documents provided by us that relate to the processing and cultivation of goods supplied by us may not be made accessible to third parties, unless they have been B. have been published in catalogs or similar products.
    3. If we carry out crop protection consultations, the customer is obliged to first carry out a test of the recommended measures on some of the plants. The measures may only be carried out generally after the test has been successfully completed. The test plants must be kept under the same conditions as the other plants, which should be the subject of the plant protection measures tested after the test has been successfully completed. Subject to the restrictions in these contractual conditions, we are only liable for advice on crop protection provided by us if a proper test has been carried out beforehand and can be proven by the customer.

  15. Intellectual property rights, licenses, multiplication
    1. The plants subject to plant variety protection may only be grown and propagated on the basis of a license agreement. A license agreement must be concluded separately; the license fees are agreed in this.
    2. The delivery of protected varieties by us takes place exclusively for the purpose of cultivation and the subsequent sale; the purchaser is not authorized to produce propagation material or to export reproducible material to a country that does not guarantee plant variety protection, unless this is agreed separately.
    3. If the purchaser experiences mutations in the purchased plants, the purchaser must inform us immediately, grant us access to the check and provide us with samples of the mutations without being asked.
    4. If the purchaser is entitled to alleged rights from finding the mutation, which he wants to sell or have valued, he is obliged to inform us of this in advance. In any case, we reserve the right to assert our own rights to mutations.
    5. In the event of a sale of the rights to mutations to which he is entitled, the customer grants us an irrevocable right of first refusal; in the event of a planned protection of such rights, he is already committed to offering us his rights for assignment at a reasonable price. If there is no agreement on the price, an expert appointed by the chamber of agriculture responsible for us should make a binding decision.
    6. The sale in Section 14.5 is equivalent to any transfer of rights to third parties for the purpose of exploitation (e.g. through licensing), provided that in this case a right to enter the transfer agreement is to be granted instead of the right of first refusal.
    7. The purchaser irrevocably allows us or third parties commissioned by us to inspect his cultivated areas after prior notice and appointment to check compliance with the plant variety protection.
    8. The term GLOBALG.A.P, the brand and the logo, as well as the GLOBALG.A.P number (GGN) may only be used in accordance with the general regulations and the sub-license and certification contract. So it may only be used in business-to-business communication (B2B).

  16. Place of performance, place of jurisdiction, severability clause
    1. Place of performance for all services from contracts between us and the customer is D-55457 Gensingen.
    2. German law applies exclusively. The UN sales law is expressly waived.
    3. For all disputes arising from contractual relationships between us and the customer - unless a different exclusive place of jurisdiction is provided by law - the place of jurisdiction is Mainz.
    4. If one of the terms contained in these terms and conditions or another clause of a contract concluded between us and the customer is or becomes ineffective in whole or in part, the contract remains effective. The parties undertake to replace the ineffective clause with an agreement that comes as close as possible to this in economic terms.
Gensingen, December 2021
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