Terms & Conditions of Hazera Seeds Germany GmbH

General Conditions of Sale and Delivery for Seeds as per Seed Marketing Act, Excepting Seed Potatoes and Sugar Beet Seeds (Seed T&Cs)

1. General stipulations

1.1    The conditions below apply to all offers, deliveries and attendant legal transactions relating to seeds as per Seed Marketing Act (except for seed potatoes and sugar beet seeds).

1.2    These conditions only apply vis-a-vis farmers and other entrepreneurs within the meaning of Civil Code § 14.

1.3    The Seed T&Cs are accepted by the buyer with the acceptance of the first delivery at the latest, and apply for the full duration of the business relationship.

1.4    Changes of these conditions will be communicated to the contract partner in writing. Changes will be considered accepted if the contract partner fails to object to them within six weeks from their communication in writing. The user will specifically inform the contract partner of this legal consequence when changes are announced.

1.5    Any conditions of the buyer or other agreements such as warranties, amendments and side agreements deviating from the Seed T&Cs are only effective if the seller explicitly agrees to the conditions or agreements in question.

1.6    Insofar as legal transactions are entered into verbally or telephonically subject to written confirmation, the contents of the confirmation letter will be regarded as agreed insofar as the addressee fails to object immediately. This legal consequence will be pointed out in the confirmation letter.

1.7    All offers and prices of our price lists and other brochures are quoted net in euros and represent the pure goods value without VAT. All our offers, especially those in the price list and catalogue, are subject to alteration and without retroactive effect on already concluded business transactions. Errors excepted.

 

2. Delivery and delivery dates

2.1    If a delivery date or delivery period is agreed, the buyer is required to inform the seller of the place the delivery needs to be made to no later than five working days before the date or start of the period unprompted (“shipping instruction”). If the shipping instruction is not received in time, the seller can withdraw from the contract and demand compensation in place of delivery if the seller has set the buyer a minimum grace period of three working days and not received a shipping instruction within this grace period either. Delivery dates and delivery periods will be postponed and extended by the duration of the grace period. The same applies accordingly to the part not covered by shipping instructions only concerning a part of the delivery, contrary to agreement.

2.2    If the delivery period is only based on the shipping instruction’s receipt date at the seller, prompt delivery as per section 2.4. is considered agreed if in doubt.

2.3    If it is agreed that the buyer needs to provide the shipping instruction at a specific date or within a period, the provisions in section 2.1 apply except for the first sentence. In the absence of such an agreement, the seller needs to set the buyer a reasonable period for providing the shipping instruction, whereupon the provisions in section 2.1 will apply except for the first sentence.

2.4    If not agreed otherwise, the clauses below mean that deliveries will be made as follows:

– “immediately”: within five working days upon receipt of the shipping instruction;

– “prompt”: within ten working days upon receipt of the shipping instruction;

– “beginning of a month”: in the period from the 1st up to and including the 10th;

– “middle of a month”: in the period from the 11th up to and including the 20th;

– “end of a month”: in the period from the 21st up to the end of the month;

– “in time for sowing”: within five days upon receipt of the shipping instruction at the earliest.

2.5    If an approximate delivery quantity is agreed, deviations of up to five percent from the quantity stated in the contract will satisfy it. In the event of such a deviation, the total payable purchase price needs to be calculated in accordance with the quantity deviation.

2.6    The buyer is required to accept partial deliveries unless unreasonable for the buyer in the individual case.

2.7    If the seller fails to deliver on time, the buyer needs to set the seller a grace period for delivery. As a minimum, this grace period amounts to:

3 days if “immediate” delivery is agreed

5 days if “prompt” delivery is agreed

7 days if later delivery is agreed.

Section 2.6 applies accordingly to deliveries provided within the grace period. If the seller fails to deliver within the grace period altogether or as agreed, the buyer can withdraw from the contract and demand compensation in place of delivery if the seller is answerable for this breach of duty.

2.8    If the seller has only effected a partial delivery despite the setting of a grace period for belated performance, section 2.7, sentence 4 will apply to the non-effected partial delivery correspondingly. The buyer can only withdraw from the entire contract and demand compensation in place of delivery if the buyer has no interest in the partial delivery, however.

2.9    The buyer cannot withdraw from the contract and demand compensation in place of delivery if the seller’s delivery falls short of the quantity named in the contract by up to five percent; a possible breach of duty on the part of the seller is negligible to this extent. With an approximate delivery quantity as per section 2.5, sentence 1 above applies if the seller’s delivery falls short of the approximate quantity named in the contract by up to ten percent. The remaining statutory warranty claims remain unaffected.

2.10  In sales subject to delivery possibility, the seller does not assume the procurement risk. There is no obligation for the seller to deliver if delivering the goods is impossible for the seller for legal or factual reasons. This is in particular the case if

– the presupplier the seller has entered into a legal transaction with to fulfil its delivery obligation to the buyer fails to meet its obligation to supply the seller correctly and on time;
– the competent certification authority refuses to certify the delivery;

– delivery from own propagation is explicitly or tacitly agreed and the goods from own propagation have run out.

An obligation of the seller to pay compensation for non-fulfilment is determined as per section 9 in these cases.

 

3. Shipment

3.1    If the parties do not agree otherwise, the seller decides the manner of goods shipment and the loading place for the goods.

 

4. Treatment of seeds

4.1    Seeds that are customarily used dressed or treated in another manner need to be delivered dressed or treated in the other manner unless agreed otherwise.

4.2    If the buyer intends to invoke a deficiency of the delivered goods after an – initial or additional – dressing or other treatment performed by the buyer or at the buyer’s behest, the buyer is required to prove with suitable evidence that the deficiency already existed before the – initial or additional – dressing or other treatment provided by the buyer or third party. Particularly coming into question as suitable evidence is a backup sample taken before the dressing as per section 8.2.

 

5. Payment

5.1    The place of fulfilment for payments is the seller’s place of business.

5.2    If not agreed otherwise, payment is due without deductions immediately upon receipt of the seeds and invoice, and payable within 14 days upon invoice receipt. Default is subject to the statutory provisions of Civil Code § 286.

5.3    The seller is only obliged to accept bills of exchange if this is explicitly agreed. Bills of exchange and cheques are only accepted in lieu of payment in any case, so that the purchase price claim will only expire upon payment of the amount stated in the bill or cheque, and only to that amount. .

5.4    Upon gaining knowledge of a significant deterioration of the buyer’s financial circumstances or solvency, the seller is entitled to declare all claims from the business relationship due immediately, including deferred claims and claims from bills of exchange, and make further deliveries conditional to an advance payment or provision of collateral. If a deadline is set for this advance payment, the seller is entitled to withdraw from the contract or demand compensation in place of delivery upon its unsuccessful expiry.

5.5    Offsetting against claims of the seller is only permitted with counterclaims that are undisputed or have been awarded without any further legal recourse. The assertion of retention rights that are not based on the same contractual relationship is excluded.

 

6. Quality agreement; adulteration with GMOs

6.1    The following is exclusively regarded as the seeds’ agreed quality within the meaning of Civil Code § 434.1, sentence 1:
1. The seeds have varietal and species identity;
2. Seeds produced in Germany meet the requirements of Annex 3 of the Regulation on the Marketing of Seeds of Agricultural Species and of Vegetable Seeds dated 21 January 1986 as amended from time to time; seeds produced in other countries meet the requirements of the respective European seed directive.

6.2    The varieties whose seeds are delivered for sowing are – unless explicitly agreed otherwise – not subject to the regulation requirements of genetic engineering law. The production of these seeds involved processes aimed at preventing the accidental presence of GMOs requiring regulation. The seeds are propagated in an open field under natural givens with free pollen flight. It is therefore impossible to completely exclude the accidental presence of GMOs and to ensure that delivered seeds are completely free from all GMO traces.

6.3    All the vegetable varieties grown by Hazera have been cultivated by way of traditional breeding methods without the use of genetic modification techniques able to lead to genetically transformed organisms as defined in Directive 2001/18/EC of the European Parliament and of the Council on the deliberate release into the environment of genetically modified organisms.

6.4    If not agreed otherwise, the following applies: We deliver seeds for plant growing. The seeds we supply are unfit for human or animal consumption in both a processed and unprocessed condition. Plants grown from the seeds we supply must only be used as food and/or feed upon their complete separation from the seed grain supplied as seed. The supplied seeds must in particular not be used to grow seed sprouts where the sprout is consumed along with the seed. We accept no liability for substances or microorganisms irrelevant under seed law that are found on or in the supplied seed grains unless a targeted treatment of the seeds with microorganisms and/or micronutrients has been separately agreed.

 

7. Complaints

7.1    If a merchant, the buyer needs to inspect the seeds immediately and no later than within two working days after delivery. If the seeds are acquired in sealed containers for resale, the inspection requirement only applies if the container is opened or indications of a deficiency of the seeds are detectable, e. g. on the packaging.

7.2    If a merchant, the buyer needs to complain about evident deficiencies of the seeds to the seller immediately and no later than within three working days after delivery. Non-obvious deficiencies also need to be complained about by buyers who are merchants to the seller immediately and no later than within 2 working days after their discovery. The complaint’s receipt by the seller is decisive. The seller can demand a written notice of defects from the buyer, whereupon the periods in sentences 1 and 2 will be extended to five working days, with the complaint’s receipt by the seller decisive.

7.3    If the buyer is an entrepreneur, but not a merchant, the periods detailed in 7.1 and 7.2 are each extended by two working days.

 

8. Sampling, obtaining an expert opinion

8.1    Upon discovering a deficiency after delivery that the buyer intends to invoke, the buyer needs to have an average sample as per 8.2 taken from the delivery immediately insofar as there are any seeds left. The average sample need not be taken if the seller has acknowledged the deficiency.

8.2    The average sample needs to be taken and created in keeping with the sampling requirements of the Association of German Agricultural Analytic and Research Institutes by a person appointed or engaged by a Chamber of Agriculture, a Chamber of Industry and Commerce, or a competent authority. The average sample needs to be split into three equal subsamples. One subsample needs to be sent to one of the seed testing laboratories for analysis immediately, the second subsample must be sent to the seller, and the third remains with the buyer. If one of the parties doubts the test results of the seed testing laboratory involved, the subsample remaining with this party needs to be sent to another seed testing laboratory not yet involved in the testing and designated by the seed certification authority responsible for the buyer under national law immediately for analysis. The findings of the second seed testing laboratory are binding for both parties if they conform with those of the first . If the findings do not conform, the still remaining subsample needs to be sent to a further seed testing laboratory not yet involved in the testing and again designated by the seed certification authority responsible for the buyer under national law immediately for analysis. The findings of the third seed testing laboratory are binding for both parties if they conform with those of the seed testing laboratories involved before. If no such conformity is provided, the average of the three analyses will be regarded as the determined result.

8.3    If no seeds are left and the seller of the seeds fails to immediately accept a buyer complaint, an inspection of the crop needs to be immediately performed by a suitable expert, in which the seller and buyer must be involved. The expert needs to be appointed by the seed certification authority competent under national law in whose territory the inspection is to take place. The inspection by the expert is aimed at determining the facts and identifying possible causes of the defect as to quality. This provision does not apply where seeds have been acquired for resale.

8.4    A commitment of the seller to the findings of the expert within the meaning of the provisions above will not arise if the parties are already disputing whether the purchased item was deficient at the passing of risk and the average sample does not conform with a retained sample taken on the basis of official regulations or results of the post-control crop.

 

9. Claims for defects and liability

9.1    The seller is only liable to pay compensation for breaches of duty in the event of deliberate intent or gross negligence unless the seller causes injury to the buyer’s life, body or health, or violates an essential contractual obligation whose fulfilment is indispensable for attaining the contract purpose.

9.2    For deficiencies the seller is liable for, the seller will provide subsequent improvement or replacement delivery at the seller’s option. Only if the subsequent improvement or replacement delivery has failed can the buyer demand a reduction in the price or withdraw from the contract and, if the seller is culpable of deliberate intent or gross negligence, demand compensation in place of delivery. Sentence 2 does not apply if the presence of the deficiency constitutes a breach of an essential contractual obligation and the fulfilment of this contractual obligation is indispensable for attaining the contract purpose.

9.3    Claims due to deficiencies and breaches of obligations unrelated to defects of quality or of title expire in one year from the delivery of the seeds. This does not apply in the cases of Civil Code § 309.7.a and b. Civil Code § 438.3 remains unaffected.

9.4    Compensation claims for negligent breaches of material contractual obligations are limited to the foreseeable damage that is typical for the contract.

9.5    Insofar as liability is excluded or limited, this also applies to the personal liability of the seller’s employees, staff, representatives and vicarious agents.

 

10. Duty to minimize damages

The seller needs to apply all reasonable measures apt to minimize the damage. Insofar as the damage could have been prevented or reduced if the deficiency had been complained about at once upon its detectability, this also needs to be taken into account for calculating the compensation.

 

11. Retention of title, assignment as security

11.1  All goods supplied to the buyer by the seller remain the property of the seller until the payment of all claims from the business relationship with the buyer (reserved goods). This also applies if individual or all claims of the seller have been incorporated into a running account and the balance is drawn and recognized. It moreover applies to claims from cheques and bills of exchange made out in connection with the business relationship.

11.2  The buyer acquires no ownership by a possible treatment or processing of the reserved goods as per 12.1 because the buyer performs this for the seller without any obligations arising therefrom for the seller. If reserved goods are processed, combined, mixed or blended with other goods not belonging to the seller, the seller is due the co-ownership share thereby created in the new item in the proportion of the value of the reserved goods to the other processed goods at the time of the processing, combination, mixing or blending. If the buyer acquires sole ownership of the new item, the seller and buyer agree that the buyer will grant the seller co-ownership of the new item in the proportion of the value of the processed, combined, mixed or blended reserved goods and stores it for the seller without charge.

11.3  The seller is only permitted to resell reserved goods or use them for sowing in the due course of business.

11.4  Upon its separation from the substrate and soil, the crop from the seeds supplied by the seller is assigned to the seller until the full payment of all claims from the business relationship by way of security, and stored by the seller free of charge.

11.5  All claims of the buyer from a resale of reserved goods are assigned to the seller at the time of concluding the contract by way of security for all the seller’s claims from the business relationship. The buyer is entitled to collect these claims for the seller’s account until this is revoked by the buyer. The seller’s entitlement to collect these claims itself remains unaffected by this. But the seller undertakes to not collect the claims as long as the buyer duly complies with all payment and other obligations.

11.6  The buyer is required to adequately insure reserved goods at the buyer’s own expense insofar as this is customary, and to inform the seller of any event of damage or loss immediately. Claims from the insurance contract are insofar assigned to the seller in advance, namely until the full payment of all claims from the business relationship.

11.7  We reserve ownership of delivered items until the full payment of all claims from the delivery contract. We are entitled to repossess purchased items if the buyer behaves in a manner contrary to contract.

11.8  The buyer is required to inform us immediately in writing if delivered goods are seized or exposed to other third-party interventions. Insofar as the third party is unable to refund the judicial and extrajudicial costs of a lawsuit as per § 771 of the code of civil procedure to us, the buyer will be liable for our loss.

11.9  The buyer is entitled to resell reserved goods in the ordinary course of business. The buyer already assigns the claims against the purchaser from the resale of reserved goods to us now to the amount of the final invoice amount agreed with us (including VAT). This assignment applies irrespective of whether the purchased item has been resold without or after processing. We reserve the right to prohibit the use or processing. The buyer also remains authorized to collect the claim even after the assignment. Our right to collect the claim ourselves remains unaffected by this. We will not collect the claim, however, as long as the buyer meets the buyer’s payment obligations from the proceeds collected, is not in default, and especially as long as no application is filed for the opening of insolvency proceedings and no payments are suspended.

11.10 Any treatment, processing or alteration of purchased items by the buyer is always performed in our name and on our behalf. In this case the buyer’s expectant title to the purchased items continues in the altered items. Insofar as purchased items are processed with other items not belonging to us, we acquire co-ownership of the new items in the ratio of the objective value of our purchased items to the other processed items at the time of the processing. The same applies in the event of mixing. Insofar as the mixing results in the buyer’s item needing to be regarded as the main item, it is agreed that the buyer will assign co-ownership to us proportionately, and store the sole or joint property thus created for us. To secure our claims against the buyer, the buyer also assigns to us any receivables from third parties that arise for the buyer from the incorporation of the reserved goods in real property; we hereby accept this assignment.

11.11 We undertake to release the collateral due to us upon the buyer’s request insofar as its value exceeds the collateralized claims by more than 20 %.

 

12. Seed use

12.1  The buyer undertakes to only use the seeds as intended (see 12.2). The buyer is in particular prohibited from using the seeds for the production of propagating material without a previous written permission by the respective holder of the plant variety protection rights, the granting of which is at the discretion of that holder. If the supplied seeds are resold by the buyer, the buyer needs to pass the obligation from 12.1 on to the buyer’s contract partners. In this case the buyer needs to effectively agree this prohibition of further processing and propagation with the buyer’s customers.

12.2  Unless explicitly agreed otherwise, the buyer is only permitted to use the seeds in question delivered by the seller for the cultivation of end products (e. g. vegetables) and/or other finished products (e. g. seedlings) at the buyer’s farm.

12.3  The seller is entitled to enter the buyer’s farm and/or the building at the buyer’s disposal where the seeds supplied by the seller and/or the plants grown from these seeds are located, so that this material can be inspected and assessed. The seller will inform the buyer of planned visits in time.

12.4  The finished product grown from the seeds delivered to the buyer must only be sold by the buyer under the variety name registered by the seller.

12.5  If in breach of an obligation as per sections 12.1 or 12.2, the buyer needs to pay a contract penalty amounting to six times the purchase price of the seeds to the holder of the plant variety protection rights upon the request of the seller or of that holder. The seller’s liability for further damages remains unaffected by this.

12.6  The seller in no way guarantees that the use of delivered products will not infringe third-party (industrial property or copy) rights.

 

13. Disputes

13.1  Insofar as the parties of the purchase contact are merchants, all disputes arising from or in connection with it will be adjudicated by an arbitration court for seed disputes or a regular court at the claimant’s option. The arbitration courts for seed disputes are published on the respective homepage of the Federal Association of German Plant Breeders, German Raiffeisen Association and Federal Association of Propagation Organization Firms.

13.2    Competent is the arbitration court for seed disputes or regular court that has jurisdiction over the location of the defendant unless the parties agree otherwise.

13.3  The arbitration proceedings are governed by the rules of procedure of the competent arbitration court.

 

14. Miscellaneous

Should one or several provisions of these Seed T&Cs be or become ineffective or unenforceable, the effectiveness of the remaining provisions will remain unaffected by this. In place of ineffective or unenforceable provision, the parties will agree an effective and enforceable provision that most closely approximates the economic interests of both parties. The same applies in the event of the Seed T&Cs featuring an unintentional loophole.

15. Special delivery terms

Invoicing is provided separately for each variety based on the quantity delivered in a closed order and the price scale. The delivery of orders valued over € 50.00 to gardeners and consumers within Germany is provided free of processing, freight and postage costs. Special fees and extra costs of a higher-priced shipping method are at the buyer’s expense.

 

16. Pelleted seeds

We only use the best high-germinating seeds for our seed pills (for greenhouse and outdoor growing). As the successful cultivation of seed pills depends on many different factors, we are unable to guarantee cultivation success. Seeds of our protected varieties, special breeds and seeds of Hazera B. V., Holland, must not be processed into seeds pills without our explicit permission.

 

Hazera Seeds Germany GmbH • Post box 1204 • 31232 Edemissen • Tel. 05176-98 91 12 • Fax 05176-98 91 19 • Email: info@hazera.de • Internet: www.hazera.de

 

T&Cs version dated March 2022