Terms and Conditions for Business Customers

I. General Provisions

1. The
   contracting party is Spilkers Jungpflanzen OHG (hereinafter referred to as Spilker)
   Baumschulenweg 1
   D-25355 Barmstedt
   Competent registry court / registration no.: Pinneberg Local Court / HRA 5556
   VAT ID no.: DE 261 593 040
2. Spilker’s services are provided in accordance with the following provisions, which apply to all current and future business relationships with commercial customers.
3. These terms and conditions shall be deemed accepted at the latest upon receipt of the goods or services.
4. Any counter-confirmations by the customer referring to their own terms and conditions are hereby rejected, even if these are included in the customer’s order letter.
5. Spilker also rejects its customers’ terms and conditions in cases where Spilker’s terms and conditions do not contain any provisions.
6. Amendments and additions to these contractual terms and conditions require written confirmation by Spilker to be valid; this also applies to any waiver of the written form requirement.

II. Quotations and Prices

1. Quotations are always subject to change and, unless expressly stated otherwise, are strictly net in euros, excluding any deductions, ex works Spilker.
2. We reserve the right to prior sale until the order is placed.

III. Right of withdrawal

1. You may withdraw from the contract within 14 days without giving any reason in writing (e.g. letter, fax, email) or – if the goods have been delivered to you before the expiry of this period – by returning the goods. The period begins upon receipt of this notice in writing, but not before the goods have been received by the recipient (in the case of recurring deliveries of similar goods, not before receipt of the first partial delivery). To meet the withdrawal deadline, it is sufficient to send the notice of withdrawal or return the goods in good time.
   
   The notice of withdrawal must be addressed to Spilker

IV. Consequences of withdrawal

1. In the event of a valid withdrawal, the services received by both parties must be returned and any benefits derived (e.g. interest) must be surrendered. If you are unable to return the service received in part or only in a deteriorated condition, you may be required to compensate us for the loss in value to that extent. In the case of the provision of goods, this does not apply if the deterioration of the goods is attributable exclusively to their inspection – as would have been possible for you in a high street shop, for example. Furthermore, you can avoid the obligation to pay compensation for any deterioration caused by the intended use of the goods by not using the goods as if they were your property and by refraining from anything that could impair their value.
2. Items suitable for parcel post must be returned at our risk. You must bear the costs of the return shipment if the goods delivered correspond to those ordered and if the price of the item to be returned does not exceed 40 euros, or if, in the case of a higher price, you have not yet provided the consideration or made a contractually agreed partial payment at the time of withdrawal. Otherwise, the return is free of charge for you.
3. Items that cannot be sent by post will be collected from you. Obligations to refund payments must be fulfilled within 30 days. The period begins for you upon dispatch of your notice of withdrawal or the item, and for us upon receipt thereof.
   
   End of the withdrawal policy

V. Obligation to deliver

1. If, due to circumstances not foreseeable by Spilker at the time the contract was concluded or due to natural disasters, such as hail, frost, drought damage and other cases of force majeure, such as damage caused by wild animals, pest infestations, power cuts or other hindrances and operational disruptions for which Spilker is not responsible, the obligation to perform is waived. In such cases, Spilker shall inform the customer immediately and refund any payments already made.

VI. Quality Standards and Warranty

1. Spilker undertakes to supply plants in accordance with the quality standards for nursery plants of the Forschungsgesellschaft Landschaftsentwicklung Landschaftsbau e.V. (FLL) in their currently valid version.
2. When selling plants and other new goods to businesses, Spilker provides a one-year warranty that the goods are free from defects at the time of transfer of risk.
3. Beyond the warranty, no guarantee is given for the establishment of plants, unless this has been expressly agreed in writing.
4. A warranty for variety authenticity is only provided at the express request of the buyer and up to the amount of the invoice. No further claims shall exist.

VII. Dispatch and Packaging

1. All sales are dispatched only upon request by the recipient.
2. Dispatch is at the expense and risk of the purchaser; the transfer of risk takes place upon handover of the goods to the carrier, but at the latest when the goods leave the premises. Spilker shall under no circumstances be liable for damage incurred during transport; it is the purchaser’s responsibility, in particular, to ensure transport suitable for plants.

VIII. Acceptance, delay in acceptance and transfer of risk

1. Acceptance of the subject matter of the order by the customer shall take place at Spilker’s premises, unless otherwise agreed or unless the nature of the goods dictates otherwise.
2. Acceptance shall be deemed to have taken place upon the unobjected receipt of the goods. This shall be deemed to have taken place if the customer does not notify Spilker in writing within 8 days of handover that the goods are defective or non-conforming to the contract. Defects which only become apparent at a later date must be reported immediately, at the latest within 8 days, after they have become apparent.
3. The customer is obliged to collect goods ordered for collection within 3 working days of the confirmed collection date. In the event of non-acceptance or late acceptance, Spilker may exercise its statutory rights.
4. In the event of a delay in acceptance, Spilker may charge a reasonable storage fee. The subject matter of the order may also be stored elsewhere at Spilker’s discretion. The costs and risks of storage shall be borne by the customer.
5. If the customer is in default of acceptance or culpably breaches other obligations to cooperate, Spilker is entitled to claim compensation for the damage incurred in this respect, including any additional expenses. Further claims remain reserved.

IX. Limitations of Liability

1. Spilker shall be liable without limitation in cases of intent, gross negligence or injury to life, limb or health.
2. Spilker shall also be liable for breaches of a primary contractual obligation. Liability in this respect shall be limited in amount to the foreseeable damage typical for this type of contract.
3. Otherwise, liability for simple negligence on the part of Spilker, its representatives and vicarious agents is excluded.
4. Liability under the Product Liability Act remains unaffected.

X. Payment, Set-off and Default

1. Unless a different payment term has been agreed, all invoice amounts are payable in full immediately and without deduction upon issuance of the invoice.
2. Partial payments are only permitted if agreed in writing in advance.
3. In addition to the other cases provided for by law, the customer shall be in default at the latest if they fail to pay within 30 days of the due date and receipt of an invoice or payment schedule, even without a reminder. If it is unclear whether or when the customer has received the invoice or payment schedule, receipt of the goods shall take its place.
4. Set-off against counterclaims is only permitted if these are undisputed or have been established by a court.
5. The right of retention on any legal grounds shall only apply if counterclaims are undisputed or have been established by a final court judgement. In all other respects, the obligation to pay shall arise without prejudice to the right to give notice of defects.
6. All claims of Spilker shall become due immediately if the terms of payment are culpably breached or if, after conclusion of the contract, circumstances become known which, in Spilker’s opinion, are likely to reduce the customer’s creditworthiness or ability to pay. Spilker shall then be entitled to perform any outstanding services only against advance payment or other security.
7. In the event of late payment, interest on arrears shall be charged at a rate of 8% above the respective base rate of the European Central Bank per annum.

XI. Retention of title and right of lien

1. Spilker shall have a lien on the customer’s items that have come into its possession pursuant to the order, in respect of its claim arising from the order.
2. The lien may also be asserted in respect of claims arising from work carried out previously and other services, insofar as these are related to the items in Spilker’s possession.
3. For other claims arising from the business relationship, the lien shall apply only insofar as such claims are undisputed or have become final.
4. The goods delivered remain the property of Spilker until all claims and demands, regardless of their legal basis, have been settled. Spilker is entitled to take back the goods if the customer acts in breach of contract.
5. Spilker’s ownership is not forfeited by the fact that the customer temporarily stores, stacks or plants the delivered plants on their own or third-party premises until their resale or final use. The customer is obliged to proceed in such a way that the plants can be identified as having come from Spilker.
6. The customer is authorised to resell the goods subject to retention of title in the ordinary course of business. The customer hereby assigns in advance to Spilker all claims against third parties arising therefrom, in the amount of the respective invoice value (including VAT). Notwithstanding this assignment, the customer remains entitled to collect the claims.
7. Processing and transformation of the goods subject to retention of title by the customer shall be carried out exclusively on behalf of Spilker. In the event of processing with other items not owned by Spilker, Spilker shall be entitled to co-ownership of the new item in the ratio of the invoice value of the goods subject to retention of title to the purchase price of the other processed goods.
8. The customer is obliged, upon request, to inform Spilker of all details relating to the resale, in particular the identity of the third party.
9. In the event of third-party intervention, in particular in the event of attachment of the goods subject to retention of title or the exercise of a contractor’s lien, the customer must immediately notify Spilker in writing and inform the third party without delay of the retention of title.
10. The customer shall bear all costs incurred in lifting the third-party claim and in recovering the goods subject to retention of title, insofar as these costs cannot be recovered from third parties.
11. The customer is obliged to keep the goods subject to retention of title in proper condition.
12. Spilker undertakes to release the securities to which it is entitled insofar as their value exceeds the claims to be secured and not yet settled by more than 10%.

XII. Place of performance and jurisdiction

1. All legal relationships shall be governed exclusively by the law of the Federal Republic of Germany, to the exclusion of the UN Convention on Contracts for the International Sale of Goods. The place of performance is the registered office of Spilker, Baumschulenweg 1, 25355 Barmstedt. The exclusive place of jurisdiction for all present and future claims arising from this contract is the District Court of Elmshorn. The same place of jurisdiction shall apply if the customer has no general place of jurisdiction within Germany.