I.            Scope of application

1.                   These terms and conditions apply to all our offers, deliveries, services and related legal transactions with companies within the meaning of Section 14 of the German Civil Code (BGB), legal entities under public law and special funds under public law (hereinafter “Buyer”). They also apply to the delivery of planting stock by our propagators to us, with the exception of the provisions that expressly refer to delivery by us.

2.                   Deviating, conflicting or supplementary GTC of the contractual partner shall not apply, even if we do not expressly object to their validity in individual cases .

3.                   Subsidiary to the contractual agreements and these Terms and Conditions of Business , the German Potato Terms and Conditions of Business/Berlin Agreements in in the version valid at the time of conclusion of the contract (“BV n.F.”) shall apply, unless the RUCIP Terms and Conditions of Business have been agreed.

4.                   At the request of the contractual partner, we will send the Berlin agreements or the RUCIP terms and conditions.

        II.            Offer, conclusion of contract, Representation

1.                   Our offers are subject to change and non-binding.

2.                   Conclusion of contracts, orders, assurances and other agreements shall only become binding upon our written confirmation. Intermediaries and commercial agents have no authority to conclude contracts.  

3.                   Our employees, with the exception of managing directors and authorized signatories, are not authorized to make verbal promises or agreements that deviate from or supplement these terms and conditions.

      III.            Place of performance, delivery, Delay in delivery

1.                   The place of performance for our services is Sanitz.

2.                   Our delivery times apply from the agreed place of delivery. In case of doubt, delivery times stated by us are non-binding unless they are expressly designated as binding . Delivery periods shall commence upon conclusion of the contract, however, not before we have received all information/documents required from the Buyer for performance.

3.                   Our delivery obligation is subject to the reservation of proper self-delivery and, insofar as our delivery is subject to an acceptance result , subject to the reservation of acceptance.

4.                   If the harvest quantity of the ordered variety and quality is lower than legitimately expected by us upon conclusion of the sales contract, we shall be entitled to reduce the delivery quantity to this extent, provided that we are not otherwise responsible for the non-delivery, . The payment obligation of the buyer shall be reduced accordingly to the quantity delivered. In consideration of the shortfall, we shall be released from our delivery obligation and shall neither be obliged to deliver replacement products nor to pay compensation. This provision shall apply accordingly in the event that, due to damage caused through no fault of our own or due to a ban on marketing or a comparable official order for which we are not responsible, fewer or no goods of the type and quality ordered can be delivered.

5.                   If a temporary impediment to performance occurs due to force majeure, strike, lockout, frost or other weather conditions or other events for which we are not responsible , the delivery time shall be extended accordingly . If delivery is not only temporarily impossible for us for the aforementioned reasons, our obligation to deliver shall lapse without compensation. In the event of partial impossibility, paragraph 4 shall apply accordingly.  

6.                   We are entitled to make partial deliveries to a reasonable extent, which may be invoiced separately.

      IV.            Payment, default of payment, Offsetting

1.                   Payments are due within 30 days of receipt of our invoice or credit note. Credit notes for deliveries of the multiplier will be issued by us immediately in the regular invoice run after receipt of the respective delivery bill or the loading documents.

2.                   We are only obliged to accept bills of exchange if this has been agreed in writing . If checks or bills of exchange are not honored, all our claims against the buyer shall become due immediately.

3.                   If partial payment has been agreed, the entire claim shall become due if the buyer defaults on payment of a full agreed installment.

4.                   If, after conclusion of the contract, we become aware of circumstances that jeopardize our payment claim or if the buyer is in default of payment, we are entitled to change the terms of payment for partial deliveries still to be made and/or future deliveries and to demand advance payments or security deposits. Our statutory rights due to default remain unaffected.

5.                   Offsetting by the buyer with a disputed claim or a claim that has not been legally established is excluded. The buyer may only exercise a right of retention if it is based on the same contractual relationship or an undisputed or legally established claim against us.

       V.            Retention of title

1.                   The sale is subject to retention of title in accordance with the BV n.F. with the following changes and additions.

2.                   If the goods subject to retention of title are combined with a property, the buyer hereby assigns to us the fruits derived from the goods subject to retention of title in the amount of the invoice value, subject to the condition precedent of the time of separation from the property. We hereby accept this transfer of ownership. The goods shall be stored for us and shall be returned to us at any time upon request. A resale is permitted in accordance with paragraph 1. If the (co-) acquisition of ownership is legally excluded, the buyer assigns to us any existing compensation claim in the corresponding amount. We hereby accept this assignment .

3.                   At our request, the purchaser must notify its customers in writing of the assignment of claims within the scope of the retention of title.

4.                   The buyer is liable for all reasonable costs of legal defense against third parties who access the reserved goods or the claims assigned to us .

5.                   At the buyer’s request, we shall release securities at our discretion insofar as these exceed the value of our claims by 20%.

 

 

      VI.            Warranty

1.                   The notice of defects shall be governed by the BV as amended with the following amendments and additions.

2.                   In the event of a defective delivery, we shall also be entitled, at our discretion, to supply a replacement for the defective lot instead of a compensation for reduced value chosen by the buyer.

3.                   The sale of certified planting stock does not contain any implicit guarantee of quality within the meaning of § 434 BGB. We are not liable for public statements made by third parties about the quality of the goods.

4.                   We are entitled to make replacement deliveries dependent on a reasonable partial payment, taking into account the defect.

5.                   The warranty period is one year from delivery of the goods, except in cases of intent.

    VII.            Liability, limitation of liability

1.                   Insofar as it does not concern the breach of material contractual obligations, our contractual and non-contractual liability for financial loss and property damage due to non-performance and poor performance due to simple negligence is excluded. This also applies to the conduct of our legal representatives and vicarious agents. The above limitation of our liability does not apply in the event of the assumption of a guarantee of quality or the fraudulent concealment of a defect.

2.                   In the event of our liability, this is initially limited to the scope of delivery and the associated costs. Our own liability is, except in cases of intent, injury to life, body or health, for fraudulent deception and the assumption of a quality guarantee, limited to the foreseeable damage.

   VIII.            Plant variety protection, export, Contractual penalty

1.                   All seed potatoes sold by us are protected by the German Plant Variety Protection Act ( ) and Regulation (EC) No. 2100/94.

2.                   In accordance with the respective contract, the buyer only acquires the right to cultivate and/or sell the plant material in Germany. The export to countries outside the EU is only permitted with our written consent . Export to countries that are not members of UPOV is prohibited. Export within the EU requires prior consultation with us and may only be made to countries in which we have not appointed an exclusive representative. We reserve the right to demand licenses for plant propagation abroad.

3.                   For each decitonne (dt) of seed potatoes exported in violation of paragraph 2, the buyer shall pay us a contractual penalty at least in the amount of the license fee for certified seed potatoes plus the costs incurred by us due to the violation. We reserve the right to assert further damages by offsetting the contractual penalty paid. We determine the amount of the license annually.

      IX.            Documentation, audit rights

1.                   The buyer/the VO company shall keep proper records of the resales it has made or the utilization of the purchased planting stock and the planting stock produced from it or from subsequent generations and – sorted by marketing year  under stating the respective variety, the quantity sold or utilized, the propagation stage, the sorting and the name and address of the respective buyer/propagator and will forward the relevant documents (including a copy, but at least a copy of an excerpt of the aforementioned information and the further provisions of this Section IX. containing the aforementioned information as well as the further provisions of this clause IX) to the third party commissioned by us to collect the information without delay, by 30.06. of the year in question at the latest.

2.                   The Agent shall be entitled to inspect the accounts and records of the buyer/the VO company with regard to compliance with the aforementioned obligations and to check these as well as the whereabouts of the acquired plant material and the plant material produced from it or from subsequent generations. The Agent shall ensure that any information and documents received are treated confidentially and, in particular, that is only disclosed to the breeder if and to the extent that this is necessary in the context of detecting or prosecuting a breach of law or contract.

3.                   If there are reasonable doubts about the completeness of the information and documents provided by the buyer/the VO company, the authorized representative may also inspect and check the areas cultivated with the planting material purchased from us and the corresponding warehouses in which the purchased planting material and / or the harvest obtained from it (including harvests of subsequent generations of the purchased planting material) are stored. The buyer/the VO company must inform our authorized representative of the relevant cultivation areas and warehouses and grant the authorized representative direct access to his/her premises at , insofar as this is necessary for the inspection.

4.                   The buyer/the VO company shall also impose the obligations arising from Section VIII. and IX. on its customers/reproducers in a binding manner and obligate them to their customers in the same way.

        X.            Applicable law, Place of jurisdiction

1.                   The contractual relationship shall be governed by German law to the exclusion of the UN Convention on Contracts for the International Sale of Goods.

2.                   With regard to the arbitration agreement of the Berlin agreements or the RUCIP terms and conditions, we have the right to choose to also appeal to the ordinary courts. The place of jurisdiction for merchants and legal persons under public law shall be Rostock. We shall also be entitled, at our discretion, to take legal action at the buyer’s place of jurisdiction.

(as at 19/04/2023)