All orders and deliveries will be exclusively handled in accordance with our Terms and Conditions of Sale and Delivery outlined below and accepted by the customer when placing an order. Oral and written subsidiary agreements on your part or on the part of our agents shall not be binding upon us unless we have given our consent in writing. All orders will be confirmed in writing. Offers shall not be binding until confirmed.
Terms and conditions of sale and delivery
All orders shall be handled under the official address of the customer. If the delivery address differs from the official address please state such other address in any case. All orders will be confirmed by us in writing and will then be binding. No separate re-confirmation of the delivery date will be given. In the case of orders placed on short notice the delivery of products under orders not yet confirmed shall be considered an order confirmation. Elsner pac® Vertriebsgesellschaft mbH does not assume liability for any damage accruing if you advertise for the ordered products or incur obligations visà-vis third parties before you have received our unconditional, formal order confirmation or delivery promise.
Right of rescission
If the customer fails to pay for deliveries already made, or refuses the acceptance of confirmed deliveries without any substantial reason, or if it must be feared that he cannot meet his obligations, we shall have the right to rescind orders that had already been confirmed.
Cancellation and alteration of production orders
Orders that have been placed and confirmed can only be cancelled on mutual agreement. We shall have the right to invoice the customer for lost profit at a rate of up to 5% of the contract value until eight weeks before the date, and up to 10% of the contract value until four weeks before the date of delivery. Alterations of orders that have been placed, confirmed and fixedly scheduled are subject to mutual agreement as well and possible only up to five weeks prior to delivery.
Cancellation and alteration of laboratory production orders
Laboratory production necessitates long preparation times and is an exclusive order production. In the case of a cancellation or alteration of orders placed, the work performed to such date will be fully invoiced for.
Prices and payment
All prices agreed are net prices plus statutory value added tax and are understood ex producing market garden, excluding licence and freight cost as well as packaging in the case of semi-finished products, elite material and unrooted cuttings. Elsner pac® Vertriebsgesellschaft mbH has the right to send the goods cash on delivery or request advance payment. All invoiced amounts shall become payable gross and without any deductions within 30 days from the date of invoice. If paid during 7 days we grant 2% discount. Delay in payment shall become effective without reminder 30 days after the date of invoice. In case the term of payment is exceeded, we charge interest on arrears under § 247 BGB/Civil Code; the interest rate claimed is 8% higher than the basic interest rate. For the first reminder we shall charge an amount of € 1.50, for the second reminder € 3.00, and for the third reminder € 5.00. Each payment shall be booked against the oldest invoice. Cheques shall only be valid when duly honoured. If the products (except ready-for-sale ware) are collected and immediately paid, we grant 3% discount on the invoiced amount unless the purchaser is in default of any other obligations vis-à-vis Elsner pac® Vertriebsgesellschaft mbH, Elsner pac Jungpflanzen Thiendorf GbR and Elsner pac® Jungpflanzen GbR. The supplied or collected products remain our property until paid in full (reservation of proprietary right). Finished plants must be paid at receipt of the product.
Warranty cannot be undertaken for the taking root and further growth of the plants because their growth will depend on the prevailing ambient conditions which are beyond our control. We do not provide warranty for a possible segregation of chimaeras after in-vitro reproduction as this is a natural process, and we do not assume responsibility for any changes in variety properties which are not genetically caused. Any advisory service shall be rendered to the best of our knowledge but without warranty. In the event of strikes, heating failures and Force Majeure we shall completely or partly be released from the delivery true to schedule.
Notice of defects
Any complaints in respect of the size, classification or delivered quantities of the ware can only be considered if such complaint is received in writing or over the phone within 24 hours for unrooted cuttings, and within three days for young plants and meristem plants from the laboratory. Please indicate the packer number which you find on the box, or copy the label (for unrooted cuttings). Complaints notified over the phone must be filed in writing within three days by the customer. Complaints for defects that are not visible when the plants are delivered – such as mixing of varieties or a poor health condition – shall be made in writing immediately upon detection. Pathogenic tests of the health state shall be conducted within 3 weeks from the delivery. Immediately upon receipt of the plants, the customer assumes full responsibility for maintaining the health state of the delivered plants and the plants reproduced from them. We shall undertake liability in principle only up to the amount invoiced for all defects notified in due time and correctly in accordance with this section.
Damage in transit
Our responsibility ends as soon as the plants leave our production site, and is transferred to the carrier. If so requested, the transport will be agreed with the contracting party. The plants are insured against loss or damage in transit. The consignee is under the obligation to inspect the plants for intactness, proper condition and delivery to schedule before signing the shipping documents. In case of damage in transit or delayed arrival, the recipient shall make a respective note on the delivery receipt, send it without delay to us, and indicate the exact scope of the damage. We cannot claim damages from the insurance company until these conditions are met; the general information "accepted with reservation" does not satisfy the insurer.
Replacement of varieties and deliveries
Unless expressly excluded by the customer we shall reserve the right to deliver similar and equivalent replacements for the varieties even if the ware was ordered in good time. Orders placed at short notice, i.e. up to four weeks before the date of delivery, shall be basically subject to the replacement of varieties, irrespective of the order confirmation. An order shall be deemed to have been met if the ware has left the producing marketgarden up to seven days before or up to seven days after the confirmed date of delivery.
Special terms and conditions for legally protected varieties
If an order placed contains varieties that are protected by law these may only be used for the production or sale of ready-for-sale ware. If it is intended to reproduce the plants for the same purpose, this shall be agreed with the licence holder or the licensing agency authorized by the former. The number of sold plants is to be reported. The royalties will be separately charged. Any reproduction for the purpose of the sale of unrooted cuttings, young plants, semi-finished and finished goods shall only be allowed with a valid licence agreement with the owner of the protected varieties. If mutations are detected in the culture, the grower shall undertake to notify the owner of the protected variety of the detection of the mutation. The latter can by himself or through third parties inspect the mutations at the grower’s facility and request plant material of the mutation. The grower shall only be allowed to economically exploit the mutation or essential derivative varieties with the written consent of the original variety owner. Our distributor charges a fee for the right to use its intellectual and industrial property (variety protection and trademark protection) rights, copyrights and right of publicity. This fee is separately shown in the invoice as a royalty.
Dresden shall be the place of payment and performance, and the venue, also for bill and cheque protests. Otherwise, the sale contracts and all other transactions including future business operations and their performance shall be subject exclusively to the German legal regulations. These terms and conditions shall also be applicable to exports unless special terms of payment have been agreed expressly and in writing, especially also with regard to foreign jurisdiction. Any deviations from above terms and conditions including those for placing orders shall require supplier’s confirmation in writing. The same shall apply to oral subsidiary agreements. If any section of the contract should become invalid the remainder of the contract shall remain unaffected thereby.