TERMS AND CONDITIONS
Spring Assortment 2020
General Terms and Conditions
of Volmary GmbH
1.1 The following General Terms and Conditions apply to all sales and licensing
conducted in the course of our business operations, unless otherwise indicated
in our binding oer or order conrmation.
1.2 Our General Terms and Conditions apply exclusively. Buyer terms and
conditions that conict with or dier from our General Terms and Conditions
or any supplementary agreements are only binding if expressly agreed to in
writing. Our General Terms and Conditions apply even if goods are delivered
to the buyer without reservation despite our awareness of conicting or
diering buyer terms and conditions.
1.3 The following General Terms and Conditions apply only to businesses
within the meaning of Section 14 of the German Civil Code (Bürgerliches
Gesetzbuch – BGB).
1.4 Unless otherwise agreed, the interpretation of customary contracts is
subject to Incoterms 2010 (EXW per Incoterms 2010), including any additions
in force at the time of contract signing.
2. Oer – contract signing
2.1 Representations of our products (seeds, bulbs, seedlings etc.) in promotional
materials etc., including our web pages, are not legally binding oers
within the meaning of BGB Section 145. They are non-binding and subject to
change. Their purpose is to encourage buyers to submit orders.
2.2 Orders submitted by the buyer shall be considered binding for the buyer
for two weeks as of the date on which we receive the order unless otherwise
stated upon order submission.
2.3 No contract shall result until the order is conrmed by us in writing. If
we deliver goods or services without rst conrming the order, this shall
constitute acceptance of the order.
2.4 If we accept the order, whether in writing or through fullment, after
the two-week binding period (see 2.2), the contract shall be considered in
eect unless immediately rejected by the buyer.
2.5 We have the right to adjust varieties, quantities and delivery dates on order
conrmations to reect actual availability. Such changes shall be considered
accepted unless rejected by the buyer within eight calendar days of receipt of
the order conrmation. This applies only if the change is deemed reasonable
by the buyer in consideration of our interests.
3.1 Unless otherwise stated in the contract, delivery dates agreed upon
represent the dates on which the goods will be made available at our
production facility in Senden, Germany, for handover or shipping (ex works
per Incoterms 2010).
3.2 Should our suppliers fail to deliver the right goods to us on time, our obligation
to deliver shall be held in abeyance. This only applies in cases where we
or our suppliers are not responsible for the delivery delays.
3.3 Raw material or energy shortages, strikes, lockouts, trac disruptions,
governmental decrees or other public law restrictions, breakdowns, force
majeure or other circumstances not caused by us or our agents and not or
foreseeable by us release us from our obligation to deliver and from any
licensing obligations for the duration of the event to the extent that the
circumstances impact our ability to deliver.
3.4 In the situations described in Sections 3.2 and 3.3, we have the right,
without obligation to pay damages, to withdraw from the contract if fullment
becomes impossible or unreasonable or an end to the hindrance is
not foreseeable. This applies only if we or our agents are not responsible for
the hindrance and we inform the buyer of the aforementioned hindrances
immediately. In the event of withdrawal, we agree to promptly refund any
payments already made by the buyer.
4. Obligation to inspect and to give notice of defects
4.1 We are authorised to full orders in partial shipments unless otherwise
agreed. The buyer may refuse to accept partial deliveries only if they do not
serve its interests objectively. Rejection of partial deliveries is to be explained
in writing, including written substantiation of how partial deliveries would
not serve the buyer's interests objectively.
4.2 The buyer shall verify and inspect the goods immediately upon receipt to
the extent advisable in the ordinary course of business. Depending on the size of
the delivery, verication/inspection shall take place through random sampling
of a sucient quantity of goods. If the buyer requests delivery of the goods to
a third party, the buyer must ensure immediate verication and inspection.
4.3 The buyer's obligation to inspect the goods and report any defects
immediately upon receipt also extends to phytosanitary properties, including
but not limited to viruses, infestation and diseases. If the buyer suspects the
presence of such phytosanitary properties, it shall proceed as described
in 10.7. In particular, the buyer must also, with regard to its obligation to
minimise damage, separate infected or defective goods from other goods
(goods delivered by us or those in prior possession of the buyer) to avoid
4.4 In the event of obvious defects, incorrect deliveries or lower-than-expected
quantities, the buyer shall notify us immediately, but no later than within three
calendar days. Notication must take place in writing. Transport personnel are
not authorised to receive notication of defects. If the buyer fails to notify us
as required, the goods shall be considered approved and the buyer shall have
no claims for such defects, except in cases where a defect was undetectable at
the time of inspection. Sections 377 et seq. of the German Commercial Code
(Handelsgesetzbuch – HGB) shall otherwise apply.
4.5 The buyer shall notify any non-apparent defects (hidden defects) immediately
upon discovery in writing.
4.6 The buyer agrees to inspect the goods upon receipt for transport damage,
through appropriate sampling if applicable. If transport damage is found, the
buyer shall immediately prepare a report detailing the condition of the goods
and the transport damage. The report is to be submitted to the transport
personnel for signature. The buyer agrees to report transport damage immediately
by submitting the report to the transporter and to inform us and send
us a copy of the report. We are not liable for transport damage (Section 11
notwithstanding) unless the damage was caused by us or one of our agents
intentionally or as a result of gross negligence.
4.7 Our acceptance of notication of defects shall not constitute acknowledgement
of the alleged defects.
5. Pricing and delivery methods
5.1 Unless otherwise contractually agreed, all prices are quoted ex works
(our production facility in Senden, Germany). All costs of the goods, such as
duties, insurance, taxes, storage fees etc., will be charged to the buyer at the
time the goods are delivered ex works (our production facility in Senden,
Germany). Shipment shall take place only at the buyer's request, in which
case any additional freight/transport costs will have to be borne by the buyer
and will be recharged by us.
5.2 The risk of accidental loss of the goods is transferred to the buyer upon
handover of the goods to the transporter.
5.3 We will accept the return of sales packaging as required by law. Unless
otherwise contractually agreed, packaging must be sorted and delivered by
the buyer to our production facility in Senden, Germany, at its own expense.
5.4 All other transport packaging shall be charged to the buyer unless otherwise
agreed. Packaging returned undamaged by the buyer shall result in a credit.
5.5 Unless otherwise contractually agreed, goods shall be loaded for transport
by the buyer at our production facility in Senden, Germany. This also applies
to situations where the goods are picked up by a third party contracted by
the buyer. If we assist the buyer or contractor in loading the goods, this shall
constitute a favour on our part. The buyer and/or its agent remain solely
responsible for proper loading, including compliance with the guidelines
for securing the load.
5.6 Our prices are based on the price list in eect at the time the nal order
is received, unless otherwise agreed. Unless otherwise contractually agreed,
prices are quoted ex works (our production facility in Senden, Germany) and
exclude packaging and VAT.
6. Payment terms
6.1 Invoices are due 30 days after the invoice date. Other discounts require
express prior written agreement. Discounts are to be negotiated separately
for each contract.
6.2 If any changes to the VAT rate occur after contract signing, VAT will be
calculated at the newly applicable rate.
6.3 If partial deliveries are made as per 4.1 or in coordination with the buyer,
we have the right to bill separately for each partial delivery. Deliveries will be
billed at the agreed-upon unit prices.
6.4 Payment is to be transferred exclusively to one of the accounts listed
on the invoice.
6.5 Buyer payments are always credited to the oldest outstanding amount
unless otherwise agreed. Payments are applied in accordance with BGB
Section 367, i.e. rst to costs, then to interest and nally to principal. Any
other payment determinations by the debtor after the signing of the contract
shall be disregarded.
6.6 Cheques are considered provisional fullment of payment only. Payment
shall not be considered made until the amount of the cheque has been irrevocably
credited to our account. Any applicable bank fees, including in the case
of returned cheques, shall be charged to the buyer.
7.1 Conditions constituting default and the consequences thereof are dened
in BGB Sections 286, 287 and 288.
7.2 If the buyer is in default of payment, we may withdraw from all contracts
from the mutual business relationship or – at our own discretion – make
other deliveries and services (including those under other contracts from the
mutual business relationship) dependent on prepayments or security deposits;
we are further authorised to disclose all claims assignments (see 9.1) to all
customers of the buyer and to demand direct payment from said customers.
This does not apply if the buyer is only in minor default and its ability to pay
is not in question; outstanding amounts are considered minor if they total
no more than 5% of the total volume of the contract from which they arose.
7.3 The buyer may oset any counterclaims against us only if said counterclaims
have been acknowledged by us or legally enforced.
8. Retention of title
8.1 We retain ownership of the goods delivered by us until full payment of
all amounts owed to us under the underlying contract is received, including
any costs, interest and default penalties.
8.2 Our ownership also extends to goods, plants and products produced by
the buyer through cultivation, handling or processing, blending or mixing of
delivered goods that remain under our ownership. If goods under our ownership
are processed or inseparably mixed with goods owned by other parties,
we shall acquire co-ownership of the new or mixed goods. The amount of the
co-ownership is based on the ratio of the invoice value of the delivered goods
under our ownership to the invoice value of the other goods.
9. Assignment of claims
9.1 The buyer is authorised in the course of its ordinary business operations
to resell the goods delivered by us. In this case, the buyer shall, eective at
this time, assign the resulting claims against its customer to us. The amount
assigned is limited to the amount of our claim for delivery of the resold
goods including any costs, interest or default penalties, provided these
were already charged and reported to the buyer. At our request, the buyer
shall disclose to us any resale of still-unpaid merchandise including the full
names of the recipients and any information necessary for direct collection
of the claims assigned to us.
9.2 The buyer agrees to ensure, through suitable arrangements with its
customers to the extent allowed by law, that claims assigned to us are not
oset but fullled only through payment; if required, the buyer must advise
the customer of the assignment of the claim.
9.3 The buyer is entitled to collect claims assigned to us from its customers.
The buyer agrees to immediately pass on all payments received from its
customers to us, up to the amount of our outstanding claims. If the buyer
collects claims assigned to us from its customers without passing on payment
to us as agreed, we are authorised to disclose the assignment of all claims,
including those against other customers, and demand immediate payment.
In addition, we may revoke authorisation to collect if the buyer fails to meet
its obligations to us in a timely manner or other circumstances arise that
cast doubt on the buyer's creditworthiness. If authorisation to collect is no
longer in eect or is revoked by us, the buyer must immediately notify us at
our request of the names of the debtors of the assigned claims and provide
us with all the necessary information and documentation for collection.
9.4 If third parties desire access to goods under our ownership, including
as part of foreclosure or insolvency proceedings, the buyer shall notify the
third parties of our ownership and provide them with substantiating documentation.
The buyer shall notify us immediately upon doing so. Any costs
incurred in defending ourselves against alleged third-party claims to goods
under our ownership shall be reimbursed by the buyer, provided these are
not reimbursed by the third parties; any claims against third parties shall be
reciprocally and simultaneously assigned to the buyer.
9.5 If the value of the securities given to us by the buyer exceeds the total
value of our secured claims by more than 20%, we agree to release any
securities exceeding the 20% at the request of the buyer. We are free to
select which securities to release.
10.1 If goods delivered by us are marred by a defect, the cause of which was
present at the time of risk transfer, we will generally guarantee the goods
provided we are notied of the defect within the statute of limitations (see 10.4).
10.2 If the buyer resells goods delivered by us and its customer or the
last customer in the supply chain is a consumer within the meaning of
BGB Section 13, the buyer may seek recourse from us in accordance with
BGB sections 478 and 479 under supplier's redress. In a legitimate case of
supplier's redress, the liability limitations described in these General Terms
and Conditions shall not apply.
10.3 Supplier's redress requires the goods delivered by us to have been sold
to the consumer via the supply chain in unmodied condition. If the goods
are cultured or otherwise altered or improperly handled prior to reaching the
consumer, supplier's redress shall not apply. Supplier's redress requires that
the defect that was present upon transfer of the goods to the consumer also
constitute a defect under our relationship with the buyer.
10.4 The statute of limitations for guarantee claims is one year as of the
beginning of the legal statute of limitation period. If the buyer seeks justi-
able recourse against us under supplier's redress (see 10.2 and 10.3), the
legal statute of limitations shall apply instead.
10.5 If the buyer fails to meet its obligation to inspect and to give notice of
defects under Section 4, the buyer may lose its rights to guarantee per Section 4.
10.6 If the buyer reports defects, whether under Section 4 or Section 4.5,
the buyer shall grant us the opportunity to inspect said defects and/or to
have the defects inspected by third parties. If the buyer hires third parties,
including experts, to inspect the goods or determine the presence of defects,
we shall only be obliged to cover the costs of the inspection if an immediate
expert examination is objectively required and we do not conduct said
10.7 If the buyer brings guarantee claims against us, our initial obligation is
limited to re-fullment of the order (correction of the defect or delivery of a
defect-free product). Should we reject re-fullment or if re-fullment fails
or is deemed unreasonable by the buyer, the buyer may reduce the purchase
price or withdraw from the contract. The buyer shall not be entitled to damages
(Section 11.2 notwithstanding).
10.8 If the buyer is entitled to re-fullment through delivery of defect-free
goods, we have the right to adjust the variety based on actual availability,
provided said adjustment is deemed reasonable by the buyer.
11. Claims for damages
11.1 If the buyer is entitled to claims for damages or expense reimbursement
due to defects and said claims are not excluded under the above clauses or
Section 11.2, these shall expire in one year.
11.2 Damages or compensation claims of the buyer for whatever legal
reason, including infringement of duties arising from obligations or impermissible
actions that are subject to the exceptions hereinafter mentioned,
shall be excluded:
a) Our liability for breaches of cardinal duty resulting from slight negligence is
limited to those damages characteristic of this type of business transaction.
b) Damages resulting from a loss of life, bodily injuries or injuries to health that
are based on a negligent breach of duty by us, a negligent or intentional
breach of duty by our legal representatives or our agents.
c) Other damages based on an intentional or grossly negligent breach of
duty by us or deliberate or grossly negligent breaches of duty of our legal
representatives or our agents.
11.3 Furthermore, claims for damages by the buyer resulting from the
following are not excluded:
a) damage resulting from injury to life, limb or health caused by a negligent
breach of duty on our part, a negligent or intentional breach of duty by
our legal representatives or agents
b) other damage caused by an intentional or grossly negligent breach of duty
on our part or intentional or grossly negligent breach of duty by our legal
representatives or agents.
12. Advice, plant protection, cultivation
12.1 Storage tips, planting instructions, information on resistance, plant
protection advice and any other advice are not subject to purchase and supply
agreements. They represent only non-binding information, unless expressly
covered under the agreement. They do not relieve the buyer from its obligation
to properly and professionally store and process the delivered goods
and take the necessary care, especially when using pesticides and fertilisers
as well as growth promoters and inhibitors. The possibility that pathogens
may break the indicated resistance cannot be ruled out.
12.2 If we provide plant protection advice and information regarding resistance,
the buyer agrees to rst test the recommended measures on a portion of the
goods before proceeding with the recommended plant protection methods.
Only if the test is successful should the methods be employed on a general basis.
Tested plants must be kept under exactly the same conditions as the other
plants that will be subject to the plant protection methods upon successful
completion of the test. The limitations under these terms and conditions
notwithstanding, we shall only be liable for the plant protection advice we
provide if the recommended methods are properly tested prior to use and the
buyer can provide proof of said tests. Section 11.3 shall apply correspondingly.
12.3 In protecting plants, the buyer shall follow all applicable laws, including
the Plant Protection Act (Panzenschutzgesetz). If we provide plant protection
advice, this does not release the buyer from its responsibility to follow
the applicable laws.
12.4 The buyer shall be independently responsible for cultivation, especially
in terms of selecting and using growth promoters and inhibitors, fertilisers and
pesticides. The buyer shall ensure the compatibility of the methods employed.
Please note that damage may occur if non-compatible growth promoters
and inhibitors and pesticides are used. We are not liable for any damage
resulting from cultivation errors. Section 11.3 shall apply correspondingly.
12.5 Descriptions, illustrations, growing recommendations and other information,
in whatever form, that have been provided by us or our agents, such
as shelf life information, sowing, planting and harvesting dates or details
and information about breeding and cultivation conditions, are based as
closely as possible on practical and experimental procedures. We disclaim
any responsibility for damages that result from the implementation or use
of such descriptions, growing recommendations or other information. The
buyer shall bear the full risk and responsibility, whether the products and
growing recommendations are suitable for the intended cultivation under
local conditions. Product pictures in catalogues, on the internet or in other
publications show the varietal type of each variety and not the variety as
such. These pictures provide neither an expressed nor implied warranty
regarding the harvest results.
13. Intellectual property rights, licences, reproduction
13.1 The use of our intellectual property rights, including commercial property
rights (plant variety protection and trademark protection), copyrights
and image rights, is permitted only on the basis of a licensing agreement.
Goods subject to plant variety protection in particular may only be cultivated
and reproduced after purchase under a licence agreement. A separate licence
agreement is to be signed without the buyer being entitled to such an agreement;
the licence agreement shall cover licence fees.
13.2 Plant variety protection is based on applicable laws, especially the Plant
Variety Protection Act (Sortenschutzgesetz). We will only deliver protected
varieties of plants for the purpose of cultivation and subsequent sale; the
buyer is prohibited from producing reproductive material or exporting fertile
materials to a country that does not provide plant variety protection, unless
agreed separately in writing.
13.3 If mutations/sports occur, the buyer shall notify us immediately, grant
us access for examination and review and voluntarily provide us with samples
and cuttings of the mutations.
13.4 If the buyer purportedly receives rights from discovery of a mutation
that the buyer wishes to sell or protect, the buyer agrees to notify us thereof
in advance. We reserve the right to claim our own rights to any mutations.
13.5 If the buyer sells any acquired rights to mutations, the buyer shall grant
us irrevocable pre-emptive rights; in the case of the planned protection of
such rights, the buyer agrees, eective immediately, to oer us assignment
of its rights and, in the event of their non-transferability, to exclusive licensing
at an appropriate price.
13.6 If the parties fail to agree on an appropriate price as mentioned above, an
expert appointed by our local Chamber of Agriculture shall have the nal say.
13.7 The buyer grants us or third parties contracted by us the irrevocable
right to visit its planting areas upon prior notice and by appointment in order
to verify compliance with variety protection.
13.8 The buyer may not use trademarks or symbols used by us to dierentiate
its products from those of other legal entities or companies, or use trademarks
or symbols that do not dier substantially from our own without our express
written permission. The sale of plants in production in our original packaging
marked with our trademarks and symbols is exempt. Goods delivered with
labels originating from us are also exempt. In this case, trademarks appearing
on labels may be used only through use of the labels delivered along with
the delivered material to ensure preservation of our corporate designs.
13.9 We point out that the GGN (GLOBAL G.A.P. Number) of the company
Volmary GmbH may only be used for the products that Volmary GmbH has
produced. Ensure that the GGN is only used in accordance with GLOBAL G.A.P.
guidelines and not improperly. Choose the best practices in traceability and
labeling of the products, for example, the identication of GAP-certied
products at the company, in order to rule out mixing.
14. Place of fullment
14.1 The place of fullment for all services under contracts between us and
the buyer is Münster in Westphalia (Germany).
15.1 German law applies exclusively. The CISG and other conict of law
provisions possibly leading to the applicability of other jurisdictions,
including the so-called Rome I Regulation (EC 593/2008 dated 17 June
2008), are specically excluded.
15.2 Jurisdiction for all disputes arising from contractual relationships
between us and the buyer is Münster in Westphalia (Germany) unless a
dierent exclusive jurisdiction is prescribed by law.
16. Severability clause
16.1 If one of the clauses of these General Terms and Conditions or another
clause in a contract between us and the buyer is or becomes fully or partially
invalid, the remainder of the contract shall remain valid. The parties agree
to establish a new clause that comes as close as possible to the economic
intent of the invalid clause.
Headquartered in Münster,
District Court Münster HRA 12502,
Managing Directors: Hubertus Volmary, Frank Hüdepohl
We have produced our new catalogue with great care, however mistakes
are not excluded. We cannot assume any liability for these mistakes.