General Terms and Conditions

General Terms and Conditions of SeedX GmbH & Co. KG (Osnabrück) for B2B customers (“Unternehmergeschäft”), last updated: 11 December 2020

1. GENERAL

1.1 The following terms and conditions apply to all quotations, deliveries and related transactions involving seed treatments or other products of SeedX GmbH & Co. KG (hereinafter the “Seller”).

1.2 Counterparties will be notified of changes to these terms and conditions in writing. Changes shall be deemed approved if the counterparty does not object in writing within six weeks of notification. The Seller will bring this legal consequence to the counterparty’s attention when notifying changes.

1.3 These general terms and conditions shall apply exclusively. Deviating terms and conditions of the buyer and other agreements such as warranties, amendments and side agreements shall only be effective with the Seller’s express written acceptance of such terms and conditions or agreements.

1.4 If transactions are conducted orally or by telephone subject to written confirmation, the content of the confirmation letter shall be deemed to be agreed unless the recipient objects without undue delay. This legal consequence will be indicated in the confirmation letter.

2. DELIVERY AND DELIVERY DATES

2.1 The date of despatch shall be deemed to be the date of delivery.

2.2 If a delivery date or delivery schedule has been agreed, the buyer shall notify the Seller, without a request being necessary, of the place of destination for delivery (“Shipping Instruction”) no later than five working days (including Saturdays) before the date or the start of the delivery period, unless the destination for delivery has already been agreed. If the Shipping Instruction is not received in time, the Seller may withdraw from the contract and demand compensation in lieu of performance after granting the buyer a grace period of at least three working days (including Saturdays) and failing to receive a Shipping Instruction within said period. The delivery date and delivery schedule shall be extended by the grace period. If, contrary to the agreement, the Shipping Instruction only covers part of the delivery, the same shall apply to the non-disposed part.

2.3 If the delivery schedule is determined solely by the time when the Shipping Instruction is received by the Seller, in case of doubt prompt delivery as defined in clause 2.5 shall be deemed to be agreed.

2.4 If it has been agreed that the buyer shall issue the Shipping Instruction on a certain date or within a certain time period, the provisions of clause 2.2 shall apply with the exception of the first sentence. Failing such agreement, the Seller shall set the buyer a reasonable deadline for issuing the Shipping Instruction; the provisions of clause 2.2 shall then apply with the exception of the first sentence.

2.5 Unless otherwise agreed, the delivery timings set out below shall apply, with the following meaning:

– “immediate”, within 5 working days (including Saturdays) of receipt of the Shipping Instruction;

– “prompt”, within 10 working days (including Saturdays) of receipt of the Shipping Instruction;

– “the beginning of the month”, in the period from the 1st to the 10th inclusive;

– “the middle of the month”, in the period from the 11th to the 20th inclusive;

– “the end of the month”, in the period from the 21st to the last calendar day of the month.

2.6 When an approximate delivery quantity has been agreed, a discrepancy in the delivery quantity of up to 5 per cent of the quantity stated in the contract shall be deemed to be acceptable.

2.7 The buyer is obliged to accept partial deliveries, unless it is unreasonable to expect him to do so in the specific circumstances. This does not establish an obligation to make partial payments.

2.8 If the Seller does not deliver on time or on schedule, the buyer shall grant him a grace period for performance. This grace period shall be:

3 days where “immediate” delivery was agreed
5 days where “prompt” delivery was agreed
7 days where later delivery was agreed

Clause 2.7 shall apply accordingly to deliveries within the grace period. If the Seller fails to deliver within the grace period or delivery does not conform to the contract, the buyer may withdraw from the contract and may demand compensation in lieu of performance if the Seller is responsible for the breach of duty.

2.9 If the Seller has only performed in part despite being granted a reasonable period for supplementary performance, clause 2.8 sentence 4 shall apply accordingly to the part not performed. However, the buyer may only withdraw from the entire contract and demand compensation in lieu of performance if he has no interest in part performance.

2.10 The buyer shall not be entitled to withdraw from the contract and claim compensation in lieu of performance if the Seller delivers up to 5 per cent less than the quantity stated in the contract; any breach of duty by the Seller in this regard is immaterial. In the case of an approximate delivery quantity in accordance with clause 2.6, sentence 1 shall apply if the Seller has delivered up to 10 per cent less than the approximate quantity stated in the contract. The buyer retains any right to claim supplementary performance.

2.11 In the case of sales subject to the ability to deliver, the Seller does not accept any procurement risk and there is no obligation on the Seller to make delivery if the Seller is unable to deliver the goods for legal or practical reasons. This shall apply in particular if the third-party supplier with whom the Seller has entered into a transaction in order to fulfil his obligation to deliver to the buyer does not comply with its obligation to make correct and timely delivery to the Seller.

An obligation on the Seller to pay compensation for non-delivery shall be determined in such cases by clause 6.

3. SHIPPING

3.1 Unless the parties agree otherwise, the Seller shall determine how goods are shipped and also the loading point for the goods.

3.2 Shipping from the loading point shall be at the buyer’s expense and risk.

4. PAYMENT

4.1 The place of performance for payments is the Seller’s place of business.

4.2 Unless otherwise agreed, the Seller’s invoices shall be paid net within 14 working days (including Saturdays) of delivery, otherwise the buyer will be in default without a warning notice having been issued. If an invoice is not issued until after delivery, it shall be paid net within 14 working days (including Saturdays) of the invoice date, otherwise the buyer will be in default. Sentence 2 shall not apply if the buyer has not received the invoice within 3 working days (including Saturdays) of the invoice date; in this case default occurs 10 working days (including Saturdays) after receipt of the invoice.

4.3 The Seller is only required to accept bills of exchange or cheques if this has been expressly agreed. Bills and cheques will in any case only be accepted pending full discharge of the debt, such that the purchase price claim does not expire until payment of the amount specified in the bill or cheque and only with regard to said amount.

4.4 If the Seller becomes aware of a material deterioration in the buyer’s financial situation or solvency after the contract has been entered into, the Seller shall be entitled to demand immediate payment of all monies owing in the context of the business relationship, including deferred claims and claims arising from bills of exchange, and to make further deliveries dependent on an advance payment or the provision of security. If the buyer fails to make an advance payment or provide security despite being notified of a reasonable period in which to do so, the Seller may withdraw from the contract. This shall not affect the Seller’s other rights.

4.5 Set-off against the Seller’s claims is only permissible in the case of uncontested or legally established counterclaims. A right of retention may only be exercised if it relates to claims arising from the same contractual relationship.

5. NOTIFICATION OF DEFECTS

5.1 If the buyer is a merchant, he shall inspect the goods without undue delay but no later than within 2 working days (including Saturdays) after taking delivery. If the goods are purchased in closed containers for the purpose of resale, there shall only be a duty to inspect the goods if the container is opened or the state of the packaging, for example, suggests that the goods are defective.

5.2 If the buyer is a merchant, he shall notify the Seller of any obvious defects in the goods without undue delay but no later than within 3 working days (including Saturdays) after taking delivery. A buyer who is a merchant must likewise notify the Seller of non-apparent defects without undue delay but no later than within 2 working days (including Saturdays) of their discovery, based on the time of receipt of the defect notice by the Seller. The Seller may require the buyer to provide written notification of defects; this has the effect of extending the periods in sentences 1 and 2 to 5 working days (including Saturdays), based on the time of receipt of the defect notice by the Seller.

5.3 If the buyer is a business person but does not qualify as a merchant under German law, clauses 5.1 and 5.2 shall apply accordingly.

6. CLAIMS FOR DEFECTS, LIABILITY

6.1 The Seller is only obliged to pay compensation for breach of duty in case of intent or gross negligence. This shall not apply to liability for damages resulting from injury to life, limb or health or the breach of a material contractual obligation the fulfilment of which is necessary to proper performance of the contract and on adherence to which the customer relied and was entitled to rely.

6.2 The Seller shall not be liable for public statements by third parties on the characteristics of the goods, particularly in advertising or labelling.

6.3 In the case of defects for which the Seller is liable, he shall at his discretion carry out rectification or replacement. The buyer may only reduce the price or withdraw from the contract if rectification or replacement has failed. The buyer may only claim compensation if the Seller warranted that the item has a specified quality or the conditions set out in clause 6.1 are met.

6.4 Claims for defects and for breaches of duty that do not involve defects of material or legal defects expire one year after delivery of the goods. This shall not apply in cases where the Seller is liable under clause 6.1. Section 438(3) of the German Civil Code remains unaffected.

6.5 Claims for compensation due to negligent breach of material contractual obligations shall be limited to typical and foreseeable damages.

7. DUTY TO MITIGATE DAMAGE

The buyer must take all reasonable measures that are necessary to reduce the damage. If the damage could have been averted or reduced if the defect had been notified as soon as it became apparent, this shall be taken into account when assessing the compensation.

8. RETENTION OF TITLE, TRANSFER BY WAY OF SECURITY

8.1 The Seller retains title to all goods delivered by the Seller to the buyer until all claims arising from the business relationship with the buyer have been settled (retained goods). This shall also apply if individual claims or all claims of the Seller have been included in a running account and the balance struck and acknowledged. This shall additionally apply to claims from cheques and bills arising in connection with the business relationship.

8.2 The buyer does not acquire title through any treatment or processing of the retained goods as said processing is performed for the Seller without the Seller thereby incurring any obligations. If the retained goods are processed, combined, blended or mixed with other goods not belonging to the Seller, the Seller shall be entitled to co-ownership of the new item in the proportion of the value of the retained goods to the other processed goods at the time of processing, combining, blending or mixing. If the buyer acquires sole ownership of the new item, the Seller and buyer agree that the buyer shall grant the Seller joint ownership of the new item in the proportion of the value of the processed, combined, blended or mixed retained goods and store said item for the Seller without charge.

8.3 The buyer may only resell the retained goods in the ordinary course of business.

8.4 All claims of the buyer arising from resale of the retained goods shall be assigned to the Seller at the time the contract is concluded to secure all claims of the Seller arising from the business relationship. The buyer is entitled to collect these claims for the Seller’s account until such entitlement is revoked by the Seller. The Seller’s right to collect the claims himself shall remain unaffected. However, the Seller agrees not to collect the claims as long as the buyer continues to properly meet his payment commitments and other obligations.

8.5 The buyer agrees to take out appropriate insurance in respect of the retained goods at his own expense if this is usual and to notify any claim to the Seller without undue delay. As such, claims under the insurance contract shall be assigned in advance to the Seller until full settlement of all claims arising from the business relationship.

8.6 If the value of all security provided to the Seller exceeds his claims by more than 20 per cent, the Seller is obliged to release collateral at the buyer’s request or at the request of a third party adversely affected by over-collateralisation of the Seller; the Seller shall choose which collateral to release.

8.7 The provisions of clauses 8.2 to 8.6 shall apply only in transactions between business people who do not qualify as merchants under German law.

9. DISPUTES

9.1 Provided that the parties to the purchase agreement are merchants, all disputes arising from or in connection with the purchase agreement shall be settled, at the option of the claimant, by arbitration or an ordinary court.

9.2 If both parties are merchants, the competent arbitration body is the local arbitration tribunal for the Seller’s place of business; when bringing the case before the ordinary courts, the competent court of law at the Seller’s domicile is responsible.

9.3 Arbitration shall be governed by the rules of procedure of the competent tribunal.

10. MISCELLANEOUS

If any provision in these terms and conditions is held to be or becomes ineffective or unenforceable this shall not affect the validity of the other provisions. In place of the ineffective or unenforceable provision, the parties will agree an effective and enforceable provision that most closely corresponds to the economic interests of both parties. The same shall apply in the event that the terms and conditions have an unintended gap or omission.

11. DATA PROTECTION

The Seller stores and processes personal data about the buyer that the Seller requires in order to fulfil his contractual or pre-contractual obligations, such as name, company, address, e-mail address, telephone number, account number.