Terms and Conditions

General Terms and Conditions of Volmary GmbH

1. General

1.1 The following General Terms and Conditions apply to all sales and licensing conducted in the course of our business operations, unless otherwise indicated in our binding offer or order confirmation.

1.2 Our General Terms and Conditions apply exclusively. Buyer terms and conditions that conflict with or differ from our General Terms and Conditions or any supplementary agreements are only binding if expressly agreed to in writing. Our General Terms and Conditions apply even if goods are delivered to the buyer without reservation despite our awareness of conflicting or differing buyer terms and conditions.

1.3 The following General Terms and Conditions apply only to businesses within the meaning of Section 14 of the German Civil Code

(Bürgerliches Gesetzbuch – BGB).

1.4 Unless otherwise agreed, the interpretation of customary contracts is subject to Incoterms 2010 (EXW per Incoterms 2010), including any additions in force at the time of contract signing.

2. Offer – contract signing

2.1 Representations of our products (seeds, bulbs, seedlings etc.) in promotional materials etc., including our web pages, are not legally binding offers within the meaning of BGB Section 145. They are non-binding and subject to change. Their purpose is to encourage buyers to submit orders.

2.2 Orders submitted by the buyer shall be considered binding for the buyer for two weeks as of the date on which we receive the order unless otherwise stated upon order submission.

2.3 No contract shall result until the order is confirmed by us in writing. If we deliver goods or services without first confirming the order, this shall constitute acceptance of the order.

2.4 If we accept the order, whether in writing or through fulfilment, after the two-week binding period (see 2.2), the contract shall beconsidered in effect unless immediately rejected by the buyer.

2.5 We have the right to adjust varieties, quantities and delivery dates on order confirmations to reflect actual availability. Such changes shall be considered accepted unless rejected by the buyer within eight calendar days of receipt of the order confirmation. This applies only if the change is deemed reasonable by the buyer inconsideration of our interests.

3. Delivery

3.1 Unless otherwise stated in the contract, delivery dates agreed upon represent the dates on which the goods will be made available at our production facility in Senden, Germany, for handover or shipping

(ex works per Incoterms 2010).

3.2 Should our suppliers fail to deliver the right goods to us on time, our obligation to deliver shall be held in abeyance. This only applies in cases where we or our suppliers are not responsible for the delivery delays.

3.3 Raw material or energy shortages, strikes, lockouts, traffic disruptions, governmental decrees or other public law restrictions, breakdowns, force majeure or other circumstances not caused by us or our agents and not or foreseeable by us release us from our obligation to deliver and from any licensing obligations for the duration of the event to the extent that the circumstances impact our ability to deliver.

3.4 In the situations described in Sections 3.2 and 3.3, we have the right, without obligation to pay damages, to withdraw from the contract if fulfilment becomes impossible or unreasonable or an end to the hindrance is not foreseeable. This applies only if we or our agents are not responsible for the hindrance and we inform the buyer of the aforementioned hindrances immediately. In the event of withdrawal, we agree to promptly refund any payments already made by the buyer.

4. Obligation to inspect and to give notice of defects

4.1 We are authorised to fulfil orders in partial shipments unless otherwise agreed. The buyer may refuse to accept partial deliveries only if they do not serve its interests objectively. Rejection of partial deliveries is to be explained in writing, including written substantiation of how partial deliveries would not serve the buyer’s interests objectively.

4.2 The buyer shall verify and inspect the goods immediately upon receipt to the extent advisable in the ordinary course of business. Depending on the size of the delivery, verification/inspection shall take place through random sampling of a sufficient quantity of goods. If the buyer requests delivery of the goods to a third party, the buyer must ensure immediate verification and inspection.

4.3 The buyer’s obligation to inspect the goods and report any defects immediately upon receipt also extends to phytosanitary properties, including but not limited to viruses, infestation and diseases. If the buyer suspects the presence of such phytosanitary properties, it shall proceed as described in 10.7. In particular, the buyer must also, with regard to its obligation to minimise damage, separate infected or defective goods from other goods (goods delivered by us or thosein prior possession of the buyer) to avoid cross-contamination.

4.4 In the event of obvious defects, incorrect deliveries or lower-thanexpected quantities, the buyer shall notify us immediately, but no later than within three calendar days. Notification must take place in writing. Transport personnel are not authorised to receive notification of defects. If the buyer fails to notify us as required, the goods shall be considered approved and the buyer shall have no claims for such defects, except in cases where a defect was undetectable at the time of inspection. Sections 377 et seq. of the German Commercial Code

(Handelsgesetzbuch – HGB) shall otherwise apply.

4.5 The buyer shall notify any non-apparent defects (hidden defects) immediately upon discovery in writing.

4.6 The buyer agrees to inspect the goods upon receipt for transport damage, through appropriate sampling if applicable. If transport damage is found, the buyer shall immediately prepare a report detailing the condition of the goods and the transport damage. The report is to be submitted to the transport personnel for signature. The buyer agrees to report transport damage immediately by submitting the report to the transporter and to inform us and send us a copy of the report. We are not liable for transport damage (Section 11 notwithstanding) unless the damage was caused by us or one of our agents intentionally or as a result of gross negligence.

4.7 Our acceptance of notification of defects shall not constitute acknowledgement of the alleged defects. 

5. Pricing and delivery methods

5.1 Unless otherwise contractually agreed, all prices are quoted ex works (our production facility in Senden, Germany). All costs of the goods, such as duties, insurance, taxes, storage fees etc., will be charged to the buyer at the time the goods are delivered ex works (our production facility in Senden, Germany). Shipment shall take place only at the buyer’s request, in which case any additional freight/transport costs will have to be borne by the buyer and will be recharged by us.

5.2 The risk of accidental loss of the goods is transferred to the buyer upon handover of the goods to the transporter.

5.3 We will accept the return of sales packaging as required by law. Unless otherwise contractually agreed, packaging must be sorted and delivered by the buyer to our production facility in Senden, Germany, at its own expense.

5.4 All other transport packaging shall be charged to the buyer unless otherwise agreed. Packaging returned undamaged by the buyer shall result in a credit.

5.5 Unless otherwise contractually agreed, goods shall be loaded for transport by the buyer at our production facility in Senden, Germany. This also applies to situations where the goods are picked up by a third party contracted by the buyer. If we assist the buyer or contractor in loading the goods, this shall constitute a favour on our part. The buyer and/or its agent remain solely responsible for proper loading, including compliance with the guidelines for securing the load.

5.6 Our prices are based on the price list in effect at the time the final order is received, unless otherwise agreed. Unless otherwise contractually agreed, prices are quoted ex works (our production facility in Senden, Germany) and exclude packaging and VAT.

6. Payment terms

6.1 Invoices are due 30 days after the invoice date. Other discounts require express prior written agreement. Discounts are to be negotiated separately for each contract.

6.2 If any changes to the VAT rate occur after contract signing, VAT will be calculated at the newly applicable rate.

6.3 If partial deliveries are made as per 4.1 or in coordination with the buyer, we have the right to bill separately for each partial delivery. Deliveries will be billed at the agreed-upon unit prices.

6.4 Payment is to be transferred exclusively to one of the accounts listed on the invoice.

6.5 Buyer payments are always credited to the oldest outstanding amount unless otherwise agreed. Payments are applied in accordance with BGB Section 367, i.e. first to costs, then to interest and finally to principal. Any other payment determinations by the debtor after the signing of the contract shall be disregarded.

6.6 Cheques are considered provisional fulfilment of payment only. Payment shall not be considered made until the amount of the cheque has been irrevocably credited to our account. Any applicable bank fees, including in the case of returned cheques, shall be charged to the buyer.

6.7 Bank drafts are also considered provisional fulfilment of payment only. Any expenses or costs, including the cost of filing any disputes, shall be borne by the buyer. We are not bound by any deadlines for submitting proof of expenses or filing disputes.

7. Default

7.1 Conditions constituting default and the consequences thereof are defined in BGB Sections 286, 287 and 288.

7.2 If the buyer is in default of payment, we may withdraw from all contracts from the mutual business relationship or – at our own discretion – make other deliveries and services (including those under other contracts from the mutual business relationship) dependent on prepayments or security deposits; we are further authorised to disclose all claims assignments (see 9.1) to all customers of the buyer and to demand direct payment from said customers. This does not apply if the buyer is only in minor default and its ability to pay is not in question; outstanding amounts are considered minor if they total no more than 5% of the total volume of the contract from which they arose.

7.3 The buyer may offset any counterclaims against us only if said counterclaims have been acknowledged by us or legally enforced.

8. Retention of title

8.1 We retain ownership of the goods delivered by us until full payment of all amounts owed to us under the underlying contract is received, including any costs, interest and default penalties.

8.2 Our ownership also extends to goods, plants and products produced by the buyer through cultivation, handling or processing, blending or mixing of delivered goods that remain under our ownership. If goods under our ownership are processed or inseparably mixed with goods owned by other parties, we shall acquire co-ownership of the new or mixed goods. The amount of the co-ownership is based on the ratio of the invoice value of the delivered goods under our ownership to the invoice value of the other goods.

9. Assignment of claims

9.1 The buyer is authorised in the course of its ordinary business operations to resell the goods delivered by us. In this case, the buyer shall, effective at this time, assign the resulting claims against its customer to us. The amount assigned is limited to the amount of our claim for delivery of the resold goods including any costs, interest or default penalties, provided these were already charged and reported to the buyer. At our request, the buyer shall disclose to us any resale of still-unpaid merchandise including the full names of the recipients and any information necessary for direct collection of the claims assigned to us.

9.2 The buyer agrees to ensure, through suitable arrangements with its customers to the extent allowed by law, that claims assigned to us are not offset but fulfilled only through payment; if required, the buyer must advise the customer of the assignment of the claim.

9.3 The buyer is entitled to collect claims assigned to us from its customers. The buyer agrees to immediately pass on all payments received from its customers to us, up to the amount of our outstanding claims. If the buyer collects claims assigned to us from its customers without passing on payment to us as agreed, we are authorised to disclose the assignment of all claims, including those against other customers, and demand immediate payment. In addition, we may revoke authorisation to collect if the buyer fails to meet its obligations to us in a timely manner or other circumstances arise that cast doubt on the buyer’s creditworthiness. If authorisation to collect is no longer in effect or is revoked by us, the buyer must immediately notify us at our request of the names of the debtors of the assigned claims and provide us with all the necessary information and documentation for collection.

9.4 If third parties desire access to goods under our ownership, including as part of foreclosure or insolvency proceedings, the buyer shall notify the third parties of our ownership and provide them with substantiating documentation. The buyer shall notify us immediately upon doing so. Any costs incurred in defending ourselves against alleged third-party claims to goods under our ownership shall be reimbursed by the buyer, provided these are not reimbursed by the third parties; any claims against third parties shall be reciprocally and simultaneously assigned to the buyer.

9.5 If the value of the securities given to us by the buyer exceeds the total value of our secured claims by more than 20%, we agree to release any securities exceeding the 20% at the request of the buyer. We are free to select which securities to release.

10. Guarantee

10.1 If goods delivered by us are marred by a defect, the cause of which was present at the time of risk transfer, we will generally guarantee the goods provided we are notified of the defect within the statute of limitations (see 10.4).

10.2 If the buyer resells goods delivered by us and its customer or thelast customer in the supply chain is a consumer within the meaning of BGB Section 13, the buyer may seek recourse from us in accordance with BGB sections 478 and 479 under supplier’s redress. In a legitimate case of supplier’s redress, the liability limitations described in these General Terms and Conditions shall not apply.

10.3 Supplier’s redress requires the goods delivered by us to have been sold to the consumer via the supply chain in unmodified condition. If the goods are cultured or otherwise altered or improperly handled prior to reaching the consumer, supplier’s redress shall not apply. Supplier’s redress requires that the defect that was present upon transfer of the goods to the consumer also constitute a defect under our relationship with the buyer.

10.4 The statute of limitations for guarantee claims is one year as of the beginning of the legal statute of limitation period. If the buyer seeks justifiable recourse against us under supplier’s redress (see

10.2 and 10.3), the legal statute of limitations shall apply instead.

10.5 If the buyer fails to meet its obligation to inspect and to give notice of defects under Section 4, the buyer may lose its rights to guarantee per Section 4.

10.6 If the buyer reports defects, whether under Section 4 or Section 4.5, the buyer shall grant us the opportunity to inspect said defects and/or to have the defects inspected by third parties. If the buyer hires third parties, including experts, to inspect the goods or determine the presence of defects, we shall only be obliged to cover the costs of the inspection if an immediate expert examination is objectively required and we do not conduct said examination immediately.

10.7 If the buyer brings guarantee claims against us, our initial obligation is limited to re-fulfilment of the order (correction of the defect or delivery of a defect-free product). Should we reject re-fulfilment or if re-fulfilment fails or is deemed unreasonable by the buyer, the buyer may reduce the purchase price or withdraw from the contract. The buyer shall not be entitled to damages (Section 11.2 notwithstanding).

10.8 If the buyer is entitled to re-fulfilment through delivery of defect-free goods, we have the right to adjust the variety based on actual availability, provided said adjustment is deemed reasonable by the buyer.

11. Claims for damages

11.1 If the buyer is entitled to claims for damages or expense reimbursement due to defects and said claims are not excluded under the above clauses or Section 11.2, these shall expire in one year.

11.2 Damages or compensation claims of the buyer for whatever legal reason, including infringement of duties arising from obligations or impermissible actions that are subject to the exceptions hereinafter mentioned, shall be excluded:

a) Our liability for breaches of cardinal duty resulting from slight negligence is limited to those damages characteristic of this type

of business transaction.

b) Damages resulting from a loss of life, bodily injuries or injuries to health that are based on a negligent breach of duty by us, a negligent or intentional breach of duty by our legal representatives or our agents.

c) Other damages based on an intentional or grossly negligent breach of duty by us or deliberate or grossly negligent breaches of duty of our legal representatives or our agents.

11.3 Furthermore, claims for damages by the buyer resulting from the following are not excluded:

a) damage resulting from injury to life, limb or health caused by a negligent breach of duty on our part, a negligent or intentional breach of duty by our legal representatives or agents

b) other damage caused by an intentional or grossly negligent breach of duty on our part or intentional or grossly negligent breach of duty by our legal representatives or agents.

12. Advice, plant protection, cultivation

12.1 Storage tips, planting instructions, information on resistance, plant protection advice and any other advice are not subject to purchase and supply agreements. They represent only non-binding information, unless expressly covered under the agreement. They do not relieve the buyer from its obligation to properly and professionally store and process the delivered goods and take the necessary care, especially when using pesticides and fertilisers as well as growth promoters and inhibitors. The possibility that pathogens may break the indicated resistance cannot be ruled out.

12.2 If we provide plant protection advice and information regarding resistance, the buyer agrees to first test the recommended measures on a portion of the goods before proceeding with the recommended plant protection methods. Only if the test is successful should the methods be employed on a general basis. Tested plants must be kept under exactly the same conditions as the other plants that will be subject to the plant protection methods upon successful completion of the test. The limitations under these terms and conditions notwithstanding, we shall only be liable for the plant protection advice we provide if the recommended methods are properly tested prior to use and the buyer can provide proof of said tests. Section 11.3 shall apply correspondingly.

12.3 In protecting plants, the buyer shall follow all applicable laws, including the Plant Protection Act (Pflanzenschutzgesetz). If we provide plant protection advice, this does not release the buyer from its responsibility to follow the applicable laws.

12.4 The buyer shall be independently responsible for cultivation, especially in terms of selecting and using growth promoters and inhibitors, fertilisers and pesticides. The buyer shall ensure the compatibility of the methods employed. Please note that damage may occur if non-compatible growth promoters and inhibitors and pesticides are used. We are not liable for any damage resulting from cultivation errors. Section 11.3 shall apply correspondingly.

12.5 Descriptions, illustrations, growing recommendations and other information, in whatever form, that have been provided by us or our agents, such as shelf life information, sowing, planting and harvesting dates or details and information about breeding and cultivation conditions, are based as closely as possible on practical and experimental procedures. We disclaim any responsibility for damages that result from the implementation or use of such descriptions, growing recommendations or other information. The buyer shall bear the full risk and responsibility, whether the products and growing recommendations are suitable for the intended cultivation under local conditions. Product pictures in catalogues, on the internet or in other publications show the varietal type of each variety and not the variety as such. These pictures provide neither an expressed nor implied warranty regarding the harvest results.

13. Intellectual property rights, licences, reproduction

13.1 The use of our intellectual property rights, including commercial property rights (plant variety protection and trademark protection), copyrights and image rights, is permitted only on the basis of a licensing agreement. Goods subject to plant variety protection in particular may only be cultivated and reproduced after purchase under a licence agreement. A separate licence agreement is to be signed without the buyer being entitled to such an agreement; the licence agreement shall cover licence fees.

13.2 Plant variety protection is based on applicable laws, especially the Plant Variety Protection Act (Sortenschutzgesetz). We will only deliver protected varieties of plants for the purpose of cultivation and subsequent sale; the buyer is prohibited from producing reproductive material or exporting fertile materials to a country that does not provide plant variety protection, unless agreed separately in writing.

13.3 If mutations/sports occur, the buyer shall notify us immediately, grant us access for examination and review and voluntarily provide us with samples and cuttings of the mutations.

13.4 If the buyer purportedly receives rights from discovery of a mutation that the buyer wishes to sell or protect, the buyer agrees to notify us thereof in advance. We reserve the right to claim our own rights to any mutations.

13.5 If the buyer sells any acquired rights to mutations, the buyer shall grant us irrevocable pre-emptive rights; in the case of the planned protection of such rights, the buyer agrees, effective immediately, to offer us assignment of its rights and, in the event of their non-transferability, to exclusive licensing at an appropriate price.

13.6 If the parties fail to agree on an appropriate price as mentioned above, an expert appointed by our local Chamber of Agriculture shall have the final say.

13.7 The buyer grants us or third parties contracted by us the irrevocable right to visit its planting areas upon prior notice and by appointment in order to verify compliance with variety protection.

13.8 The buyer may not use trademarks or symbols used by us to differentiate its products from those of other legal entities or companies, or use trademarks or symbols that do not differ substantially from our own without our express written permission. The sale of plants in production in our original packaging marked with our trademarks and symbols is exempt. Goods delivered with labels originating from us are also exempt. In this case, trademarks appearing on labels may be used only through use of the labels delivered along with the delivered material to ensure preservation of our corporate designs.

13.9 We point out that the GGN (GLOBAL G.A.P. Number) of the company Volmary GmbH may only be used for the products that Volmary GmbH has produced. Ensure that the GGN is only used in accordance with GLOBAL G.A.P. guidelines and not improperly. Choose the best practices in traceability and labeling of the products, for example, the identification of GAP-certified products at the company, in order to rule out mixing.

14. Place of fulfilment

14.1 The place of fulfilment for all services under contracts between us and the buyer is Münster in Westphalia (Germany).

15. Jurisdiction

15.1 German law applies exclusively. The CISG and other conflict of law provisions possibly leading to the applicability of other jurisdictions, including the so-called Rome I Regulation (EC 593/2008 dated 17 June 2008), are specifically excluded.

15.2 Jurisdiction for all disputes arising from contractual relationships between us and the buyer is Münster in Westphalia (Germany) unless a different exclusive jurisdiction is prescribed by law.

16. Severability clause

16.1 If one of the clauses of these General Terms and Conditions or another clause in a contract between us and the buyer is or becomes fully or partially invalid, the remainder of the contract shall remain valid. The parties agree to establish a new clause that comes as close as possible to the economic intent of the invalid clause.


Volmary GmbH,

Headquartered in Münster,

District Court Münster HRA 12502,

Managing Directors: Hubertus Volmary, Frank Hüdepohl


Disclaimer

We have produced our new catalogue with great care, however mistakes are not excluded. We cannot assume any liability for these mistakes.

As of December 2015