Terms and Conditions (AGB)
of Mehlen Pflanzenhandel GbR

Owner: Ralf und Heike Mehlen
Krummer Weg 4, 25373 Ellerhoop, Germany

§ 1 General – scope of validity

1. These terms and conditions are a part of all delivery contracts, agreements and quotations. They apply at the latest from the placing of an order or the acceptance of a delivery as recognised.
2. Consumers in the sense of these terms and conditions are men or women, with whom a business relationship is entered, without this constituting a commercial or self-employed professional activity. Businessmen in the sense of these terms and conditions are men or women or legal entities or legally valid personal companies, with whom a business relationship is entered, and who are acting as part of their commercial or self-employed professional activities. Customers in the sense of these terms and conditions are both consumers and businessmen.
3. We expressly reject purchase or order conditions or other general terms and conditions, which deviate from, conflict with or supplement our sales and delivery conditions; even if these different conditions are recognised, they do not become a part of the contract, unless their validity is expressly agreed by us in writing.

§ 2 Conclusion of contract

1. Our offers are without obligation according to our disposability and whether they have already been sold, i.e. we expressly reserve the right to sell offered plants in the time between the making of an offer and the receipt of an order.
2. With the ordering of goods, the customer expressly declares the wish to purchase the ordered goods. We are entitled to accept the contract offered in the order within two weeks from receipt by us. This acceptance can be declared either in writing or by delivering the goods to the customer.
3. If the customer orders the goods by electronic means, we will confirm the arrival of the order without delay. The confirmation of arrival does not yet represent any binding acceptance of the order. The confirmation of arrival can be combined with the declaration of acceptance.
4. The contract is concluded with reservation depending on correct and timely delivery to us by our suppliers. This only applies in case the failure to deliver is not our responsibility, particularly when a congruent covering transaction has been concluded with our supplier. The customer will be informed about the unavailability of performance immediately, and the consideration will, if already performed, be restituted immediately.
5. If the consumer has ordered the goods by electronic means, the contract text will be saved by us and sent to the customer on demand with the enclosed terms and conditions by email.

§ 3 Prices and payment conditions

1. All prices are valid at the point of sale, Ellerhoop office, without packaging and transport, in Euros and plus sales tax. When a new price list is issued, the former prices become invalid.
2. Foreign currencies will, unless the invoice is issued in the currency, by converted into Euros at the official selling rate of the Deutsche Bundesbank on the day of invoicing.
3. When plants are personally selected at our premises, list prices are not valid.
4. We reserve the right to fulfil orders cash on delivery.
5. There are no additional costs to the customer for the use of communications media to order.
6. The customer undertakes to pay the purchase price after receipt of the goods at the latest within a period of 30 days from the date of the invoice. The consumer is liable to pay interest during a period of default of financial obligation at 5 % above the base rate. The business is liable to pay interest during a period of default of financial obligation at 8 % above the base rate. In dealing with a business, we reserve the right to demonstrate that the cost of the default is higher and claim this. In general, no discount is offered. If a discount is offered, then this requires our written agreement, otherwise no deduction is permissible. Any different payment periods or conditions require written confirmation or are expressly stated on the relevant invoice, as long as the customer has completely fulfilled all payment obligations from former invoices.
7. The consumer has a right of offsetting, when his counterclaims have been established as legally binding or have been recognised by us. The assertion of a right of retention is only permissible from circumstances, which apply to the same delivery. In commercial transactions, assertion of a right to refuse payment or a right of retention by our business customers are excluded.
8. Cheques and bills of exchange are only accepted as a provisional performance with the reservation that they are paid. Any costs and fees arising from this are borne by the customer.
9. If the financial situation of our customer worsens considerably, then we are entitled to make the performance of our contractual performance dependent on the payment in advance of the agreed payment or an appropriate security. If our customer remains inactive and after setting a reasonable period of notice, we are entitled to withdraw from the contract and demand compensation.

§ 4 Transfer of risk, despatch and packaging

1. If the purchaser is a businessman, the risk of accidental destruction or accidental damage of the goods is transferred at handover, or in case of despatch with the delivery of the goods to the transport company, the driver or other persons or companies intended to perform the delivery.
2. If the purchaser is a consumer, the risk of accidental destruction or accidental damage of the goods is transferred at the handover of the goods to the purchaser, even in case of despatch.
3. If the purchaser declines to accept the goods, this still counts as a handover.
4. In case of our purchasing, the seller has to package the goods properly and carefully. Open truck deliveries are to be covered. The individual items in the delivery are to be clearly labelled.
5. We will only conclude transport insurance at the express wish and at the cost of our customers.
6. Single-use packaging is charged at cost price. Multi-use packaging (e.g. mesh boxes, tree nursery palettes) remain our property and must be returned at the cost of the customer.
7. Packaging and transport costs and freight charges can be invoiced subsequently.
8. A delivery by HGV can only be made along an accessible road.

§ 5 Delivery duties

1. In case of weather catastrophes like e.g. drought, frost or hail or other unforeseen circumstances outside our control like e.g. epidemic, strike, lock-out, business disruptions of any kind, war, events similar to war, currency alterations or actions of authorities, the delivery period is extended for the duration of any obstruction. If delivery becomes impossible due to the stated circumstances, then we are absolved of our duty to deliver. In these cases, the customer cannot assert a claim to compensation.
2. Fixed delivery dates are binding for us only if confirmed in writing.
3. The right to deliver in parts is expressly reserved.

§ 6 Dimensions and samples

1. All dimensions are approximate. Deviations upward and downward are permissible unless they are unreasonable for the purchaser.
2. Samples only show the average characteristic. All plants do not have to be like the sample.
3. Absolute freedom from the presence of any causes of disease, particularly fungal, bacterial or other, also from latent causes, can only be guaranteed with our written confirmation and is only valid at the time of delivery. After this time, we cannot accept any liability. The content of § 8 concerning warranty of title and quality defects also applies.
4. Unless otherwise agreed, the condition is based on the "Gütebestimmungen für Baumschulpflanzen" (determination of the quality of tree nursery plants) of the Forschungsgesellschaft Landschaftsentwicklung Landschaftsbau e.V. (FLL) in the current version, also taking into account sentences 1,2 and 3 of § 6 of these terms and conditions. If there are contradictory formulations in the Gütebestimmungen of the FLL and these terms and conditions, then these terms and conditions have precedence. In special circumstances and for practical reasons, we reserve the right to bundle differently.

§ 7 Retention of title

1. In contracts with consumers, we reserve title to the goods until the complete payment of the purchase price. In contracts with businessmen, we retain title to the goods until the complete fulfilment of all claims from current business relationships including incidental claims. The retention of title also continues to be valid if individual claims from us in a current invoice and the balance has been struck and recognised. Extended and expanded retention of title are applicable.
2. Our title to the goods with retained title is not lost when the purchaser temporarily or permanently plants the delivered plants until resale on his or third party land. The retained goods are to be stored and temporarily or permanently planted separately from other plants and labelled so that we can recognise them. The customer is obligated to care for the goods with retained title without charge. This includes in particular the correct storage, planting, fertilisation and watering.
3. The customer is obligated to inform us immediately of access to the goods by a third party, for example in case of a distraint, and of any damage or destruction of the goods, stating the name and address of the creditor. The customer also has to notify us immediately of any change of ownership of the goods or his own change of residence.
4. We are entitled in case of contractual infringement by the customer, particularly payment default or the infringement of a duty under points 2 and 3 of this provision, to withdraw from the contract and demand the return of the goods.
5. The businessman is entitled to resell the goods as a part of normal business. The claims due to the purchaser from the resale including all subsidiary rights and including any outstanding balance claim in this case are assigned to us. We accept the assignment. After the assignment, the business is authorised to collect the claim. We reserve the right to collect the claim ourselves as soon as the business does not fulfil its payment obligations correctly and defaults on payments.
6. The processing of the goods by the business always occurs in our name and at our order. If the goods are mixed with goods not belonging to us, then we gain title to the mixed goods in the proportion of the value of the goods delivered by us to other goods.

§ 8 Guarantee and defects liability

1. No guarantee can be provided that the plants will grow. If the customer expressly demands a guarantee of growth, then a separate sum can be invoiced for this. An issued guarantee of growth has a duration of one year from delivery and has the precondition that the customer has provided the correct treatment for this type of plant, including in particular the correct planting depth, fertilisation and watering. Circumstances outside our control like drought, frost, infestation etc. are not covered by the guarantee. The guarantee of growth is not a guarantee in the legal sense.
2. A guarantee of varietal identity will only be given on express demand. For fruit trees, the guarantee of the identity of the variety and the demanded documents is given until the expiry of five years from delivery. The guarantee for bush fruit, roses and other woody plants only runs until the expiry of the second year from the day of delivery. No guarantee is given for the varietal identity of reseedings. No guarantee is given for the varietal identity of reseedings. For grafting rootstocks and young plants, we only guarantee the varietal identity of the delivered varieties until the expiry of one year from the date of delivery.
3. If the purchaser is a businessman, we remedy defects in the goods initially as we choose, either through remediation or replacement delivery.
4. If the purchaser is a consumer, then he has the initial choice between supplementary performance through remediation or replacement. We are however entitled to reject the manner of chosen supplementary performance if it is only possible at unreasonable cost or the other type of supplementary performance is without significant disadvantage to the consumer.
5. If the supplementary performance does not work, the customer can generally demand as he chooses either a reduction of the payment (mitigation) or reversal of the contract (withdrawal). If the infringement of the contract is trivial, particularly in case of only trivial defects, the customer does not have the right to withdraw from the contract.
6. Businessmen must notify us of inform us of apparent defects within a period of 8 days from receipt of the goods; otherwise the assertion of defects liability claims is excluded. Sending at the right time ensures compliance with the notice period. The businessman has the full burden of proof for all claim preconditions, particularly for the defect itself, for the time of noticing the defect and the correct timing of the defect notification. Consumers must inform us of apparent defects within a period of two months from the point in time, when condition of the goods not conforming too the contract was first noticed. The correct period is defined by the arrival of the notification at our office. If the consumer does not send this notification, then defects liability rights lapse two months after the defect was noticed. The burden of proof for the time the defect was noticed is borne by the consumer. If the consumer was persuaded to buy the item by misleading statements in the brochure, then he bears the burden of proof in this respect. If the purchased item is a living plant, the consumer has, in cases of die-back, infestation or other disease affecting the plant, the burden of proof that this condition is not due to inadequate care of the plant after its handover.
7. If the customer chooses to withdraw from the contract due a warranty of title or quality defect after unsuccessful supplementary performance, the goods remain with the customer if this is reasonable to him. The compensation is limited to the difference between the purchase price and the value of the defective item. This does not apply if the contractual infringement was caused maliciously.
8. For businessmen, the defects liability period is one year from the delivery of the goods. For consumers, the limitation period is two years from the delivery of the goods. This does not apply if the customer has failed to notify us of the defect within the correct time (point 6 of this provision).
9. The purchase of rose varieties protected by patent or plant variety rights or plants, which have protected trade marks, obligates the businessman to resell the varieties only with the original labels delivered with the plant, and not to use the purchased rose plants or parts of them for propagation and not to sell such rose plants to a foreign country. The businessman as purchaser also undertakes to impose this measure on his purchasers in case of reselling.

§ 9 Liability limitations

1. In case of careless infringements of duties, our liability is limited to the loss or damage that is foreseeable, contractually typical, immediate and average for the type of goods. This also applies to careless infringements of the duties of our legal representatives or employees. We are not liable to businessmen in case of careless infringements of unessential contractual duties.
2. The product liabilities mentioned above do not apply to claims of the customer arising from product liability. The liability limitations also do not apply to injury to body or health or loss of life of the customer at our fault.
3. Compensation claims of the customer arising from a defect are limited to one year after the delivery of the product. This does not apply if we can be accused of gross negligence or in case of injury to body or health or loss of life of the customer at our fault.

§ 10 Final provisions

1. The law of the Federal Republic of Germany is applicable. The provisions of EU commercial law are not applicable.
2. If the customer is a businessman, a public legal entity or separate estate under public law, the sole jurisdiction for all disputes arising from this contract is the location of our office. The same applies if the customer has no general jurisdiction in Germany or whose residence or normal address at the time of starting an action is unknown.
3. Should individual provisions of the contract with the customer including these terms and conditions be or become invalid, this does not affect the validity of the remaining provisions. The wholly or partially invalid provision is to be replaced by a provision, whose commercial success comes nearest to the invalid provision.