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Terms of Service ( April 2017)

§ 1 Scope
(1) These terms shall constitute part of all agreements made by Bock Bio Science GmbH and by Wolfgang Bock Pflanzenexport GmbH & Co. KG (hereinafter collectively referred to as BBS) and shall also govern any offer and acceptance, whether relating to current or future business relations.
(2) In case any individual term should be or become ineffective, whether in whole or in part, this shall not affect the remaining parts of these Standard Terms. Instead of the ineffective provision, such other provision shall apply as most accurately reflects the purpose of the agreement and the parties’ intention at the time of entering into the agreement. Unless the parties explicitly consent to the incorporation in written form, any deviating, contradictory or supplementary standard terms shall not become part of the agreement, even if the parties have gained knowledge of such terms.
§ 2 Conclusion of Agreements
(1) Offers by BBS are without engagement and non-binding. Orders shall become binding once confirmed by BBS in writing or in case delivery is made without order confirmation.
(2) BBS reserves its right to retroactively correct any noticeable errors contained in any offer, confirmation or invoice.
(3) All crop notices, including those made by field sales forces, shall be made to the best of knowledge and belief but without binding force and excluding all liability.
§ 3 Delivery
(1) All deliveries shall be made ex factory in Bremen.
(2) Deliveries shall be deemed to have been made on time if they are made within a period of two to four weeks of the confirmed delivery date. If the volume of the transaction is modified or expanded compared to the original order and if this leads to a delay in delivery, BBS shall immediately notify the other contracting party of the new delivery date giving the reasons for such delay.
(3) For purposes of providing adequate plant hygiene, the goods shall be delivered in disposable packaging invoiced at cost. Deviations from catalogue pictures and descriptions are permitted insofar as they relate to the exterior appearance of the ordered goods, result from the nature of the used materials and are customary in the trade. In any case, the function and quality of the goods shall not be subject to any material adverse effects. In case of any impairment of performance without fault by BBS and in case of force majeure, crop failure, growth disturbance, interruption of operations and climate damage, BBS shall be released from its obligation to comply with the confirmed delivery date. BBS shall immediately give notice of the new delivery date. In case any of the mentioned events occurs, BBS shall also be entitled to rescind the agreement; provided, however, that BBS shall immediately notify the other contracting party that the goods are not available and return to the other contracting party any consideration received from such party.
§ 4 Acceptance
(1) The other contracting party shall have the obligation to accept the ordered goods.
(2) If the other contracting party seriously and finally refuses to accept the ordered and non-defective goods and if, BBS, therefore, rescinds or terminates the agreement, the other contracting party agrees to pay flat-rate damages in the amount of the originally agreed consideration for the entire term of the agreement to the extent that such amount has not already been paid to BBS. The other contracting party reserves his right to prove that actual damages were less.
(3) In addition to the claim for damages pursuant to § 4 para. 2, BBS shall be entitled to claim from the other party compensation for any consequential damages resulting from such other party’s refusal of performance.
§ 5 Notice of Defects
In case the other contracting party is a merchant, any objection to obvious defects of the goods needs to be raised in writing and without undue delay, in any case within ten days’ time. Otherwise, the goods shall be deemed approved. The preceding provision shall also apply in case of losses in transport.
§ 6 Liability and Warranty
(1) In case of a slightly negligent breach of duty, BBS shall only be liable for direct average-type damages that are foreseeable and typical of this sort of agreement. The preceding provision shall not apply in respect of any customer claims for product liability and claims on the ground of injury to the life, body or health resulting from a breach of duty to BBS or one of its legal representatives or vicarious agents.
(2) The period of limitation in respect of all claims shall begin on the commencement of the statutory period of limitation and extend for one year thereafter. In case of a purchase agreement with a consumer, the period of limitation with regard to claims arising from a defect of the delivered goods except for used goods shall begin on the delivery date and extend for two years thereafter. In the instances set forth in § 438 para. no. 2 Civil Code (BGB) and in case of fraudulent intent, damage incurred through any injury to the life, body or health based on a negligent breach of duty by BBS or a willful or negligent breach of duty by any of its legal representatives or vicarious agents and in case of other damages based on a grossly negligent breach of duty by BBS or a willful or grossly negligent breach of duty by one of its legal representatives or vicarious agents, the statutory periods of limitation shall apply.
(3) BBS does not give any warranty as to the absolute non-infestation with plant-inherent germs, the growth of seedlings, the sprouting success of raw materials, the date of blossom and the complete homogeneous expression of the blossom color and petal form or the genotype, respectively.
(4) The purchaser agrees that mutations may occur during the propagation of plant varieties and that we cannot prevent, and shall not be liable for, such mutations. Any liability, direct or indirect, for such mutations are expressly excluded. If we become aware of circumstances which indicate the occurrence of any mutations, we will notify the purchaser of such mutations and provide the purchaser, at purchaser's request and expense, contract plants of the affected contract varieties. We are hereby authorized to cease propagation of the Order for contract varieties affected by such mutations until the purchaser provides written confirmation as to its willingness to accept the delivery of the affected goods.
(5) The purchaser acknowledges that mutations to plants which are subject to plant variety protection as so-called essentially derived varieties are included in the scope of protection of the plant variety protection to the original plant, with the result that commercial exploitation of plants resulting from the mutation requires the approval of the holder of the plant variety protection. The purchaser agrees to inform us immediately of any mutations which have occurred. In the event of the sale of the purchaser's rights to a mutation, the purchaser grants the owner of the original plant an irrevocable option to purchase.Any and all demands for a correction of the defective goods or for delivery of defect-free goods shall expire one year after the transfer of risk in accordance with Section 3.9 and the purchaser hereby forever waives any and all expired demands.
§ 7 Pricing
(1) All prices are net prices and do not include the cost of packaging and transport and ancillary transport costs, unless otherwise agreed. The prices shall only apply in respect of the respective confirmed order. The value added tax applicable as of the delivery date shall be charged separately.
(2) BBS reserves its right to make price adjustments in respect of general changes to the production costs if the period between the conclusion of the agreement and the delivery date exceeds four months.
§ 8 Payment Terms
(1) Payments shall be due without deduction within 14 days of the invoice date and strictly net cash. Any freight costs, ancillary freight cost and costs of dispatch documents, packaging and license fees that are invoiced are not discountable.
(2) Special rates are only valid to the extent that payments are made within the period allowed for payment. If payment is made after the expiry of such period, prices will be adjusted up to the list price plus the advanced freight and packaging costs and the default interest.
(3) The other contracting party shall only be entitled to set off counterclaims that have not been contested or on which judgment has been entered. The other contracting party shall only be permitted to exercise his right of retention if his counterclaim is based on the same contractual relationship.
(4) Checks and bank transfers shall only be accepted on account of payment pending due discharge of the debt. BBS shall be reimbursed for any discount allowances and interest. The performance date for payments shall be the payment date on which BBS is unconditionally able to dispose of the amount in cash. BBS is entitled to commission an attorney with the collection of the claim to the extent that the other contracting party has defaulted in payment or if the other party is subject to composition or insolvency proceedings in respect of his assets or any such proceedings are imminent. Any professional fees incurred in relation thereto shall be borne by the other contracting party.
§ 9 Retention of Title
(1) BBS shall retain title to the goods until the purchase price has been entirely paid. In case the plants that are subject to title retention should suffer damage due to improper handling in the business of the other party, such other party shall have the obligation to compensate BBS for the reduction in value.
(2) Prior to the full payment of all of the goods delivered by, or to be delivered by, BBS, the other party shall not be entitled to transfer title to the goods to third parties or to pledge the goods in any way that is not in conformity with the ordinary course of business or the normal purpose of the goods. In case of non-compliance, the total purchase price of all goods delivered by, or to be delivered by, the contractor shall be immediately and entirely due for payment. The contracting party does already now assign to the other party for security purposes any claims based on the resale or on any other legal basis (insurance, tort) with respect to the goods subject to retention of title (including any balance claims under a current account).
(3) If one or several overdue invoices are settled late and if, considering the particular circumstances of the case and taking into account the mutual interests of the parties, other options are lacking, BBS shall be entitled to immediately take possession of the goods and to remove them from the storage area. For this purpose, the other contracting party does already now and irrevocably authorize BBS to step onto the premises of the business, where the delivered products are kept, or to let the person charged with the return transport of the products step onto such premises.
§ 10 Plant Breeders Rights, Plant Patents
(1) All of the species offered for sale by BBS are subject to statute or trademark protection, have been filed for Plant Breeders Rights or, at least, they constitute products derived from BBS’s own breeding. It is not allowed to copy any of these species for purposes of selling seedlings or for any other purposes.
(2) BBS is not responsible for the genetics which has been ordered to propagation; e. g. if this are transgenic plant material or GMOs. If the purchaser and owner of this genetics has informed BBS in written form, BBS will handle this plant material according to GMO regulations only in sterile cycle in the laboratory.
(3) It shall only be permitted to use seedlings and semi-finished goods for further cultivation; they shall neither be used for further propagation nor for cloning purposes. Subject as provided in § 10 para. 3, the other contracting party, therefore, agrees to use the plant clones purchased from BBS solely for purposes of cultivating them into finished plants and selling them to third parties. The other contracting party shall, in particular, not propagate the plant clones or commission third parties with such propagation. The other contracting party further agrees to incorporate the preceding restrictions into the agreements with his own customers. A penalty in the amount of € 20,000.00 shall be due in respect of each breach of the prohibition to propagate the plant clones, provided that every single instance of propagation, whether carried out by BBS itself or through third parties, shall constitute a separate breach. The penalty shall also be incurred if the other contracting party does not incorporate the preceding restrictions into the agreements with such party’s own customers and the latter proceed to propagate the plant clones. The penalty shall not be set off against any damage claims.
(4) Any propagation of BBS’s species shall only be permitted if it is based on a license agreement entered into by the other contracting party and BBS. However, in case of cloning orders, BBS does not assume any responsibility for any third-party ownership rights in the parent material if the other party has failed to inform BBS on the patent or plant species protection situation.
(5) The other contracting party shall immediately notify BBS if he has gained knowledge of an unauthorized propagation of the plants of BBS.
§ 11 Propagation
(1) If BBS receives an order for the propagation of genetic parent material using in vitro culture techniques, the other contracting party shall provide the parent material to BBS, and he shall have the obligation to deliver a written statement to the effect that the parent material forwarded by him for handling or propagation purposes, respectively, does not pertain to a species in respect of which third parties could be entitled to exclusive, species protection or patent rights. Where this is the case, the other contracting party shall deliver a written statement to the effect that such third parties have consented to his actions.
(2) BBS shall bear no responsibility for the total or partial loss of the parent material if such loss occurs without any fault on the part of BBS. The other contracting party shall deliver all appropriate information relating to such parent material that BBS deems important for the execution of the order. The other contracting party shall be liable for any damage resulting from any incorrect or incomplete information provided by him in this context.
(3) In case the agreement is cancelled, the other contracting party shall – save as provided otherwise in writing – either take back in return for payment the usable sterile and unsterile material kept in the laboratory or leave such material at the disposal of BBS free of charge.
(4) With respect to the order, the other contracting party shall be bound by a confidentiality undertaking in the broadest sense and shall not permit any third parties to access the materials.
§ 12 Place of Performance and Jurisdiction
(1) Bremen shall be the place of performance in respect of both parties. The agreement shall be governed by the laws of Germany. The provisions of the UN Sales Convention shall not apply.
(2) The agreement shall be subject to the exclusive jurisdiction of the courts of Bremen. In case the place of residence or domicile of the other contracting party is located in another country, all legal disputes shall be subject to the exclusive jurisdiction of Bremen. If the other contracting party is not a merchant, the statutory provisions on jurisdiction shall apply. Bremen, April 2017

 

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