General terms and conditions of FarmSaat AG
General sales and delivery conditions of seeds according to the German Seed Marketing Act, excluding seed potatoes and sugar beet seeds (GSDC seeds) – FarmSaat AG
1.1 The following conditions apply to offers, deliveries and the related legal transactions, which include seeds under the German Seed Marketing Act (excluding seed potatoes and sugar beet seeds).
1.2 These conditions apply exclusively to farmers and other companies under § 14 BGB.
1.3 The GSDC is approved by the buyer at the latest, when accepting the delivery and apply for the entire duration of the business relation. This does not apply, if the buyer has not the possibility to be informed about the content of the GSCD until the first conclusion of contract.
1.4 The contracting partner will be informed on any changes of these conditions in written notice. The changes are deemed to be approved, if the contracting partner does not disagree in written notice throughout a period of six weeks. The user will point out this legal consequence specifically to the contracting partner upon the announcement of changes.
1.5 Deviating conditions of the buyer to the GSDC seeds, as well as other agreements as guarantees, changes and additional agreements are only valid, if the seller expressly consent with the relevant conditions or agreements.
1.6 As far as legal transactions are completed orally or by telephone with reservation to a written confirmation, the content of the written confirmation applies as valid, if the receiver does not disagree immediately.
2. Delivery and dates of delivery
2.1 The day of delivery is deemed to be the day of dispatch.
2.2 If a delivery date or deadline is agreed, the buyer has to inform the seller unsolicited about the place of delivery at least five working days in advance of the delivery date or deadline (”shipping authorization”). Is the shipping authorization not arriving on time, the seller can withdraw from the contract and demand compensation instead of the service, when he sets a grace period to the buyer of at least three working days, and also did not receive a shipping authorization within those three working days. Delivery dates and deadlines will be extended to the grace period. The same applies to partly unauthorized deliveries, when the shipping authorization involves, contrary to the agreement, just part of the delivery.
2.3 Does the delivery deadline only determine according to the time the seller receives the shipping authorization, a prompt delivery shall apply in case of doubt according to section 2.5.
2.4 If the parties have agreed that the buyer has to give the shipping authorization on a certain given date or within a period, the terms of section 2.2 apply, excluding the first sentence. If such an agreement does not exist, the seller has to set a reasonable deadline to the buyer for giving a shipping authorization; the terms of section 2.2, excluding the first sentence, apply here also.
2.5 Unless otherwise agreed, it is to be delivered to the term:
– ”immediately”, within 5 working days after receiving the shipping authorization; – ”prompt”, within 10 working days after receiving the shipping authorization; – ”beginning of a month”, in the period of the 1st to the 10th including; – ”Mid month”, in the period of the 21st to the end of the month; – ”in good time of sowing”, soonest within 5 working days after receiving the shipping authorization.
2.6 In agreements on approx-deliveries, a deviation of the agreed delivery quantity of up to 5% is in accordance with the contract. In case of such a deviation, the entire price is to be calculated onto the quantity deviation.
2.7 The buyer is obliged to accept partial deliveries, unless it is reasonable in the individual case.
2.8 Does the seller not deliver on time, the buyer hat to set him a grace period of three days. Section 2.7 applies for deliveries within the grace period. Does the seller not deliver within the grace period or not according to the contract, the buyer can withdraw from the contract and demand compensation, if the seller is responsible for the breach of duty.
2.9 Has the seller just delivered parts of the order despite a grace period, section 2.8 sentence 3 does apply for the parts not delivered. The buyer can only withdraw from the entire contract and demand compensation, if he is not interested in parts of the delivery.
2.10 The buyer can not withdraw from the contract and demand compensation, if the seller delivered up to 5% less of the named quantity in the contract; the seller is not responsible for any breach of duty in that case. In the approx-delivery according to section 2.6, sentence 1 applies, when the seller delivered 10% less of the named quantity in the contract.
2.11 By sales made with reservations of the possibility of delivery, the seller does not assume the procurement risk and is not liable to deliver, if it is impossible on matters of law or fact to deliver the goods. In particular, this is the case, if
– the pre-supplier, who agreed on a contract with the seller, in order to fulfil his delivery obligation to the buyer, does not attend on his duty to deliver to the seller on time;
– the competent recognition authority refuses the approval of the delivery;
– delivery from own breeding is agreed explicitly or implicitly and the goods from own breeding are used up. An obligation of the seller to pay damages because of non-delivery applies in those cases according to section 9.
Unless the parties agree otherwise, the seller decides on the way of the goods dispatch, as well as the loading point for the goods.
4. Treatment of the seeds
4.1 Seeds, that are usually pickled or treated in any way, are to be delivered pickled or treated in any way, unless agreed otherwise.
4.2 Are seeds, against conventionality, ordered non-pickled or non-treated, the buyer has to take full responsibility for the caused possible risk of further treatment. Any wishes to claim a defect on non-pickled or non-treated goods after they have been pickled or treated on behalf of the buyer, are only possible with sufficient evidence from the buyer, which proof, that the defect occurred before the treatment. Sufficient evidence is in particular a security sample taken out before treatment according to section 8.2.
5.1 Place of performance for payments is the registered office of the seller.
5.2 Unless otherwise agreed, invoices from the seller are to be paid without discount within 14 days after reception of the seeds; otherwise, the buyer will be in default without further warning. Is an invoice only made after receiving the seeds, it is to be paid within 14 days of the invoice date without discount; otherwise, the buyer will be in default without further warning. Sentence 2 does not apply, when the buyer does not receive the invoice within 3 working days of the invoice date; in that case default occurs after a period of 7 working days after receiving the invoice. If the date of receiving the invoice or the payment list is unclear, the debtor is in default at the latest 30 days after the due date and reception of the goods.
5.3 The seller is only after explicit agreement obliged to accept bills of exchange. Bills of exchange and cheques will in any case only be accepted on account of payment, so that the purchase price claim is fulfilled, when the bill of exchange or the cheque covers the payment.
5.4 If the seller obtains factual knowledge of the buyer’s inability to pay, the seller is authorized to declare all receivables due and payable, even when bills of exchange or cheques were previously accepted, and to request prepayment or the provision of security for any remaining deliveries. Does the prepayment include a deadline and is not paid within the deadline, the seller is entitled to withdraw from the contract and demand compensation.
5.5 Buyers have no right to offset any counterclaims against seller’s claims unless such counterclaims are undisputed or have been established by a final and conclusive court judgement. The assertion of rights of detention, which do not result from the same contractual relationship, is excluded.
6. Quality agreement; genetic records
6.1 The following applies according to § 434 section 1 sentence 1 BGB to the quality of the seeds:
1. The seeds are true to the species and breed
2. Seeds produced in Germany meet the requirements according to attachment 3 about the regulation of the transport of agricultural seeds and of vegetable seeds from 21st January 1986 as amended; seeds produced in other countries meet the requirements of the respective European guidelines of seeds.
6.2 Unless otherwise agreed, the breeds, which are delivered as seeds for sowing, are traditional grown breeds, which are grown using traditional breeding methods without the use of genetic engineering methods.
6.3 The methods used to produce the seeds aim to prevent any accidental presence of genetically modified organisms (GMO). The seed propagation takes place on an open field under natural circumstances with free pollination. Therefore, it is impossible to guarantee, that the seeds are entirely free of any traces of GMO.
7. Notice of defects
7.1 Is the buyer a merchant, he shall examine the seeds within 2 days after reception without any delay. When purchasing the seeds in sealed packages for the purpose of reselling, the duty to examine applies only, if the package is opened or if there are traces, e.g. on the package, that imply a defect of the seeds.
7.2 Is the buyer a merchant, he has to notice obvious defects on the seeds to the seller within 3 working days after reception without any delay. Defects, which are not obvious, have to be noticed by the buyer, who is a merchant, to the seller at the latest within 2 working days after knowledge of the defect. The seller can demand the notice of defect in written form from the buyer, thus, the deadline in sentences 1 and 2 extends to 5 working days after the seller receives the written notice of defect.
7.3 If the buyer is an entrepreneur, but not a merchant, the named deadlines in 7.1 and 7.2 are extended by 2 working days.
8. Sampling, obtaining expert opinion
8.1 If the buyer wants to claim a defect on the delivery, he has to give a standard sample immediately according to 8.3 from the delivery, as long as seeds are still available. If the seller acknowledged the defect already, a standard sample is not necessary.
8.2 The standard sample has to be taken according to the sample taking regulations of the Association of German Agricultural Investigation and Research Institutions by a person ordered or obliged by a Chamber of Agriculture, a Chamber of Commerce and Industry or a competent authority. The standard sample shall be split up into three equal parts. One part has to be sent to a seed test centre (see list attached) for inspection, the second part has to be sent to the seller and the third part remains with the buyer. If one party has doubts about the test result from the test centre, the party has to sent the remaining part to a different test centre for examination, which was not involved in the inspection so far and is chosen by the responsible seed certification authority of the buyer according to the federal law regulations. The results of the second seed test centre are binding for both parties, as far as the test results match the results of the first test centre. If the results do not match, the remaining part has to be sent to a different test centre for examination, which was not involved in the inspection so far and is chosen by the responsible seed certification authority of the buyer according to the federal law regulations. The results of the third seed test centre are binding for both parties, as far as they match the results of the previous test centres. If such a match does not occur, the average of the three examinations are valid as the determined result.
8.3 If there are no seeds left and the seller does not accept a notice of defect immediately, a visit to the breeding by an appropriate expert, with the seller and buyer accompanying, shall be carried out immediately. The expert shall be named by the responsible seed certification authority according to the federal law regulations in which domain the visit shall be carried out. Aim of the visit by the expert is to find out the facts and to identify possible causes for the defect. This regulation does not apply, if the seeds are purchased for the purpose of reselling.
9. Guarantee and liability of the seller
9.1 The seller is only obliged to compensation due to breach of duty in case of intend or gross negligence, unless the seller violates life, body or health of the buyer or breaches an essential contractual obligation, which is indispensable to fulfil the contract.
9.2 If the seller is liable for quality defects, he provides improvement or replacement delivery according to his own choice. Only when the improvement or replacement delivery failed, the buyer can claim a discount or withdraw from the contract and, if the seller is guilty of intend or gross negligence, the buyer can demand compensation instead of the delivery. Sentence 2 does not apply, when the quality defect is an essential contractual obligation, which is indispensable to fulfil the contract.
9.3 Guarantee claims come under the statue of limitations from the reception onwards within one year. The same applies to breaches of duty by the seller, which are not subject to quality defects or defect of title, unless the seller violates life, body or health of the buyer or breaches an essential contractual obligation, which is indispensable to fulfil the contract.
10. Duty of mitigation
The buyer has to take all reasonable measures to reduce the damage. Could the damage have been avoided or reduced by giving notice of the defect immediately after detecting, this has to be taken into account in the assessment of the compensation.
11. Retention of title, assignment as security
11.1 The complete goods delivered from the seller to the buyer remains the property of the seller until all claims of the business relationship are paid (reserved goods). This also applies, when individual or complete claims of the seller are included in a current account and the balance is drawn and acknowledged. This, furthermore, applies to claims from cheques or bills of exchange, which had been established in connection with the business relationship.
11.2 Any treatment or processing of the reserved goods according to 12.1 does not entitle the buyer to ownership, because this is carried out for the seller, who can not be claimed for any liability. By processing, joining, mixing or combining the reserved goods with other material, not belonging to the seller, the seller shall be entitled to a co-ownership share of the new item in proportion to the value of the reserved goods to the residual finished items at the time of processing, joining, mixing or combining. Does the buyer obtain the sole ownership of the new item, the seller and buyer agree, that the seller is entitled to a co-ownership to the new item in proportion to the value of the processed or joined, mixed or combined reserved goods and store it for the seller free of charge.
11.3 The buyer is only entitled to process or sell the reserved goods within the framework of the normal course of business.
11.4 The breeding from the seeds, delivered by the seller, is with the parting from the soil assigned to the seller for security, until all claims from the business relationship are paid, and will be stored by the seller free of charge.
11.5 Full claims of the buyer arising from the resale of the reserved goods are assigned to the claims of the seller for security of up to a nominal amount of 150% of the secured claims of the seller at the time of the conclusion of contract. If the amount of the actually realisable assigned claims exceed 120% of the secured claims, securities beyond that are to be released. The buyer is entitled to collect these claims for his invoice until revocation by the seller.
The authority of the seller to collect the claims by himself remains thereof unaffected. However, the seller commits to not collect the claims, as long as the buyer duly meets his payment and other obligations properly.
11.6 The buyer is obligated, to insure the reserved goods properly at his own expenses, provided that is common, and to notice the seller immediately in case of any defects. In this respect, the claims from the insurance contract are assigned to the seller in advance until complete claims from the business relationship are paid.
12. Use of seeds
12.1 The buyer commits to use the seeds only for intended use. The buyer is particularly not allowed to use the seeds for the production of propagating material without a written permission by the respective holder of the plant variety protection rights, whose granting is at the discretion of the holder of the plant variety protection rights. Regulations to the contrary by the German Plant Variety Protection Law and the European Plant Variety Protection Regulations, particularly with regard to the so-called farmers’ privilege to reproduction at his own company, remain thereof unaffected.
12.2 Does the buyer violate an obligation according to 12.1, the seller or the holder of the plant variety protection rights are entitled to claim a contractual penalty at the amount three times of the purchase price of the seeds, which the buyer has to pay to the holder of the plant variety protection rights. The obligation to extensive compensation remains thereof unaffected.
13.1 If the parties of the sales agreement are merchants, all disputes of or in connection to the sales agreement will be decided by an arbitration court for seed disputes or an ordinary court at the buyer’s choice.
13.2 The arbitration court for seed disputes or the ordinary court, which are located near the place of business of the party who is opposing the claim, shall be responsible, unless the parties agree on something different.
13.3 The arbitration proceeding conforms to the rules of procedure of the responsible arbitration court.
14. Other matters
Should one or few of the regulations of this GCSD seeds be invalid or impossible, all other regulations remain unaffected. Instead of the invalid or impossible regulations, the parties will agree on a valid and possible regulation, which will be closest to the economic interests of both parties. The same applies in the case of an unintentional gap in the GCSD seeds.
List of the arbitration courts for seed disputes according to § 13.1 GCSD seeds
1. Arbitration Court for Seed Disputes at the Chamber of Agriculture Hannover, Johannsenstr. 10, 30159 Hannover
2. Southern German Arbitration Court for Seed Disputes, Kerner Platz 10, 70182 Stuttgart
3. Arbitration Court for Seed and Plant Variety Protection Disputes at the mid German Commodity Exchange e.V., Räcknitzhöhe 35, 01217 Dresden