GENERAL TERMS AND CONDITIONS of HERZOG.BAUM Samen und Pflanzen GmbH
1. General:
HERZOG.BAUM Samen und Pflanzen GmbH (referred to as HERZOG in the following) shall only contract on the basis of these General Terms and Conditions. They are a material component of the present agreement and all future agreements between HERZOG and its clients. Should individual provisions of these General Terms and Conditions be ineffective, this shall have no effect on the remaining provisions. An ineffective provision shall be replaced with a provision that comes as close as possible to the original economic intent of the ineffective provision. The place of performance is Koaserbauerstraße 10, 4810 Gmunden.
2. Prices:
Unless otherwise agreed in writing, all prices are net prices. A cash discount shall only be permitted if it is explicitly agreed by contract. We reserve the right to adjust prices.
3. Terms of payment:
Unless otherwise agreed, the purchase price shall be paid upon delivery. HERZOG shall be entitled to refuse to deliver goods until the purchase price has been received (in cash or credited to a bank account). If the Buyer defaults on the payment of the purchase price or the acceptance of the object of purchase – for whatever reason – the Buyer shall be obligated to pay default interest in the amount of 1.25% per month. In the event of default, HERZOG shall be entitled to refuse all service and retain any goods in its custody until the entire purchase price including all interest and fees has been paid. Payments shall be applied first to expenses, other ancillary claims, and interest, and then to the principal. In the event of default, the Buyer undertakes to reimburse all ancillary claims associated with the collection of the purchase price or the enforcement of the retention of title such as dunning fees, cash expenditures, and other costs in full and to indemnify HERZOG in this regard. In the event of termination of an agreement due to default by the Buyer, HERZOG shall be entitled to order a flat compensation amount of 20% of the purchase price regardless of whether the Buyer is at fault. Any claims for damages shall not be affected by this provision. Offsetting against claims of HERZOG is precluded. The Buyer shall not be entitled to retain payments that are due because of claims against HERZOG. If partial payment is agreed, the entire outstanding amount shall come due in the case of the late or incomplete payment of even a single instalment, and HERZOG shall not be required to grant a separate extension.
4. Retention of title:
HERZOG shall remain the owner of the goods until the full payment of the purchase price. The resale or use of the goods prior to full payment of the purchase price including interest and any ancillary costs (e.g. transport) shall only be permitted with the express approval of HERZOG. In this case, the Buyer hereby assigns all receivables from third parties arising from the resale to HERZOG as of now.
5. Transport risk:
Unless otherwise expressly agreed in writing, the transport of the goods shall occur exclusively at the cost and at the risk of the Buyer.
6. Right of withdrawal:
In addition to the cases expressly defined in the law, HERZOG shall also be entitled to withdraw from concluded agreements if HERZOG has serious doubts about the solvency of the Buyer and the Buyer is unwilling to secure the purchase price claim with a bank guarantee or advance payment despite a request by HERZOG to do so.
7. Defects, obligations to give notice of defects:
Indications of quality in the seed price lists are only intended to provide orientation. The information in the delivery documents is decisive. In the case of woody plant seeds, a tolerance margin of 3% shall apply to the purity and a tolerance margin of 10% to the germination capacity. No assurances can be made regarding the growth of plants because this requires the proper care of the plants after acceptance. The assertion of claims for consequential damages is precluded. Notice of visible defects must be given in writing immediately after delivery, but within 48 hours at the latest. The goods shall be deemed accepted in any case if the Buyer does not lodge objections by submitting official investigation findings within 30 days of the receipt of the goods.
8. Limitation of liability:
Because the availability of seeds and plants depends in part on external factors (weather conditions, etc.), HERZOG accepts no liability for the actual supply availability of seeds and plants that are ordered. In addition, HERZOG assumes no liability for slight negligence. HERZOG’s liability in the case of gross negligence shall be limited to twice the contract value.
9. Choice of law:
All contractual relationships between HERZOG and its clients shall be subject to Austrian law, under exclusion of the UN Convention on Contracts for the International Sale of Goods.
10. Court of jurisdiction:
The court of jurisdiction for all disputes arising from the contractual relationship between HERZOG and its clients is the competent court for Gmunden/Austria.