ISC

International Sales Conditions

General Terms & Conditions of the Hawita Gruppe GmbH company, D-49377 Vechta

Validity of the Terms & Conditions

1. Our deliveries and services are based exclusively on these Terms & Conditions. The partner’s differing terms & conditions not expressly acknowledged by us are invalid.

Offerings and contractual conclusion

2. Our offerings are non-binding and subject to change without notice. Orders and listings become binding only with our written confirmation. The same applies to additions, modifications and ancillary agreements.

3. The data, drawings, images and service descriptions found in catalogues, price lists or documentation that belong to the offer are approximate values typical for this line of business unless the order confirmation has expressly identified them as binding.

Pricing

4. Unless otherwise indicated, we remain committed to our price offerings for 30 days from their date. The prices in euros given in the order confirmation, plus the corresponding statutory sales tax, are decisive. Deliveries and services going beyond this are billed separately.

5. Unless otherwise agreed upon, the prices include free delivery for goods with a net value of ... euros and above, including freight, postage, insurance and packaging customary for this line of business.

6. If the cost of wages, materials or energy changes dramatically, every contractual partner is entitled to demand a reasonable price adjustment taking these factors into account.

Delivery

7. Only an approximate delivery time is regarded as agreed upon. Even if a specific delivery time is determined by the calendar, a Fixhandelsgeschäft (whereby the contract is deemed as fulfilled solely through the fixed delivery date being adhered to), in accordance with Section 376 Paragraph 1 of the German Commercial Code, shall not yet apply. For this, the contractual partners would also have to agree that (with seasonal merchandise or promotional campaigns, for example) the contract shall be readily terminated through withdrawal if the delivery deadline is not observed, and – as far as we are at fault – compensation for damages because of non-fulfillment may be demanded. For the rest, delivery deadlines or periods that can be bindingly or non-bindingly agreed upon must be in writing.

8. We are not responsible for delivery or service delays owing to force majeure and events that make delivery significantly harder or impossible (labor disputes, unrest, measures taken by the authorities, no supplies delivered by our vendors, etc., in particular) even if the periods and deadlines were bindingly agreed upon. The latter entitle us to postpone the delivery or service for the duration of the disturbance plus a reasonable preparatory period or to fully or partially rescind the contract due to the still unfulfilled part. In this case, the partner shall not be able to claim compensation for damages because of this.
If the disturbances mentioned above occur with the partner, the same legal consequences shall apply, and for his acceptance obligation too.

9. The contractual partners commit themselves to communicate to each other at once the start and end of disturbances of the kind mentioned above.

10. Partial deliveries and services are admissible if they are customary for this line of business, and are billed separately. They are exceptionally inadmissible if the partial fulfillment of the contract is of no interest to the partner.

11. If subsequent contractual modifications by the partner affect the delivery deadline, then it can be extended by a reasonable extent.

Reservation of ownership

12. We reserve the right of ownership of the delivered merchandise until all claims from the business relationship with the partner have been met.

13. The partner is entitled to sell off these goods during the normal course of business dealings as long as he fulfills his obligations arising from the business relationship with us in good time. However, he may neither pledge the reserved merchandise nor assign it as security. He is obligated to secure our rights in the credited reselling of the reserved merchandise.

14. If the partner delays payment, we are entitled (after setting a reasonable subsequent deadline) to demand the return of the reserved merchandise even without reimbursing the partner’s costs.

15. The partner already assigns to us, as a security, all receivables and rights arising from the sale of goods of which we are entitled to the right of ownership. We hereby accept the assignment.

16. The partner must communicate to us immediately about third-party compulsory enforcement measures for the reserved merchandise, the claim assigned to us or other securities, and hand us the documentation needed for an intervention. This also applies to other kinds of impairments.

17. At the partner’s request, we will release the securities entitled to us according to the preceding terms if the realizable value of the goods delivered under reservation of ownership exceeds the claims to be secured by more than 20 percent.

Defects

18. We vouch for flawless manufacture of the merchandise delivered by us. Substrates and flower potting soils are manufactured from natural raw materials, which may contain (especially in the case of peat) saprophytic fungal spores present in nature that are not detrimental to plants. Under certain cultivation conditions (high humidity, plenty of watering or slow plant growth, for example) these fungi can germinate and form a mycelium on the substrate surface that looks bad and interferes with water absorption in plants. Normally, these fungal growths will disappear by themselves after a few days. The manufacturer expressly rules out liability for these naturally occurring fungal growths.

19. We are responsible neither for defects caused by improper or unsuitable use, incorrect assembly or commissioning by the partner or third parties, usual wear and tear, incorrect or negligent treatment, nor for the consequences of modifications or repair work done improperly and without our consent by the partner or third parties. The same applies to defects that only minimally reduce the suitability or value of the merchandise.

20. Unless otherwise agreed upon, the limitation of the claims for material defects is based on legal statutes.

21. The partner must notify obvious defects immediately and in writing after the merchandise has reached the place of destination, and hidden defects as soon as the fault is noticed.

22. If a justified defect notification is made in due time, we will choose to either rectify the rejected merchandise or deliver a flawless replacement.

23. If we do not comply or contractually comply with these obligations, the partner can set us a written final deadline for compliance with our obligations. After fruitless expiry of this deadline, the partner can demand a price discount, withdraw from the contract, rectify the defect or have a third party rectify it at our expense and risk. If the partner or third party successfully rectifies the merchandise, all the partner’s claims are compensated through the reimbursement of his resulting reasonable expenses. There shall be no cost reimbursement insofar as expenditures increase as a result of the merchandise being taken to another location after our delivery, unless this is in accordance with the designated use of the merchandise. 

Payment terms

24. Unless otherwise agreed upon, all invoices are payable after merchandise delivery within 30 days of the invoice date without discount. If paid within 10 days from invoice date, a 2% discount is granted as long as the partner is not late with his payment of receivables. When settling credits, a discount is given only on the amount remaining after subtracting the credit.

25. If we have unquestionably delivered partially defective merchandise, our partner is nonetheless obligated to pay for the non-defective part unless the partial delivery is of no interest to him. Apart from that, the partner can only offset with legally determined or undisputed counterclaims.

26. If the payment deadline elapses, we are entitled to charge interest for arrears at the rate that the bank calculates us for current account credits, but at least 5 percentage points above the respective basic interest rate.

27. In case of a late payment, we can suspend the fulfillment of our payment obligations after written notification to the partner.

28. Bills and checks are accepted only after agreement and under the condition of their discountability. Discount charges are calculated from the day the invoice amount becomes due. A guarantee for the correct presentation of the bill and collection of the bill protest is ruled out.

29. If the partner decides to use a central settlement company, the debt-discharging settling amount will be entered into our account only with the payment credit.

30. If it becomes noticeable after contractual conclusion that our payment claim is at risk because of the poor productivity of the partner, we can refuse the service and set the partner a reasonable deadline so he can make step by step payments against delivery or provide a security. If the partner refuses or the deadline elapses without payment, we can withdraw from the contract and demand compensation for damages caused by non-fulfillment.

Sales aids

31. Sales and presentation aids made available to the partner free of charge remain our property and can be recalled at any time. While the partner uses the sales and presentation aids, any associated risk is passed on to him. He commits himself to put only our merchandise in the sales and presentation aids and to replace anything that he loses or damages if he is at fault.

Other claims

32. Unless specified otherwise below, other and further claims of the partner against us are excluded. This especially applies to damage compensation claims due to default, impossibility of rendering the service, culpable violation of contractual accessory obligations, negligence in contracting, and unlawful acts. Therefore, we shall not be liable for damages that did not occur on the delivered merchandise itself, and especially not for lost profits or other financial losses of the partner.

33. The preceding liability limitations do not apply in the event of damage caused by willful intent or gross negligence on our part, or if we have violated important contractual obligations. If we violated an important contractual obligation, we are liable only for the contractually typical, reasonably foreseeable damage.

34. The liability limitation does not apply either in cases where, according to product liability law, there is liability for personal or property damage to privately used objects owing to faulty delivered merchandise. It does not apply either in cases where there is an injury to life, limb or health in the event of a lack of assured features, if and as far as the particularly aim of the assurance was to safeguard the partner against damages that did not occur on the delivered merchandise itself.

35. The partner’s claims against us under the right of recourse exist only insofar as the partner has not entered an agreement with his buyer that goes beyond the statutory warranty claims. Furthermore, the last sentence of Sub-section 23 applies correspondingly to the scope of the claims under the right of recourse.

36. If our liability is excluded or limited, this also applies to the personal liability of our legal representatives and agents.

Observance of secrecy

37. Unless otherwise expressly agreed upon in writing, the information on which this contractual relationship is based is not deemed confidential.

Applicable law, place of jurisdiction, severability, and transferability of contractual rights

38. The laws of the Federal Republic of Germany apply to these business terms and conditions and all legal relationships between the contractual partners.
The United Nations Agreement from 11 April 1980 regarding merchandise purchase contracts (CISG, the \\\\\\\\"Vienna Sales Convention\\\\\\\\") shall not apply.

39. For all legal disputes, including those that are part of a bill and/or check process, our registered office is the place of jurisdiction if the partner is a businessman, an entity of public law or a public special asset. We are also entitled to sue at the partner’s headquarters.

40. If a clause in these business terms and conditions or in other agreements should be or become invalid, it shall not affect the validity of the remainder of this contract. In this case, the contractual partners are obligated to replace the invalid clause with one as similar as possible regarding economic performance.

41. Mutual contractual rights may be transferred only if both parties agree.