General Terms and Conditions (GTC)
of
Clematiskulturen F. M. Westphal
§ 1 Scope / General
These GTC apply to all business relationships of Clematiskulturen Westphal and are an integral part
of all supply contracts, agreements and offers. They are deemed to have been accepted at the latest when the order is placed
or the delivery is accepted.
Conflicting general terms and conditions shall not become part of the contract, even without express objection by
.
Consumers within the meaning of these terms and conditions are natural persons with whom a business relationship is entered into
without a commercial or independent professional
activity being attributable to them.
Entrepreneurs within the meaning of these terms and conditions are natural or legal persons or
partnerships with legal capacity with whom a business relationship is entered into and who act in
exercise of a commercial or independent professional activity.
Customers within the meaning of these terms and conditions are both consumers and entrepreneurs.
§ 2 Conclusion of contract
The offers and presentations of the goods as well as their presentation in the online store are subject to change
according to availability. By ordering goods – also in the online store – the
customer makes a binding declaration that he wishes to purchase the ordered goods and submits a corresponding offer to
conclude a purchase contract, to which he is bound for three calendar days. The right of revocation of the
customer according to § 8 of these provisions remains unaffected.
Clematiskulturen Westphal is entitled to accept this offer within a period of 2
weeks after receipt. Acceptance can be declared either in writing by
order confirmation or by delivery of the goods to the customer.
If the consumer orders electronically, receipt of the order
will be confirmed electronically without delay. This confirmation of receipt does not constitute a binding
acceptance of the order. However, the confirmation of receipt can be combined with the declaration of acceptance
.
The goods offered are available in sufficient quantities as is customary in the trade,
subject to seasonal and weather-dependent availability. There is no legal claim to the
availability of all goods offered. In the event that
is sold out in the meantime, it is possible to order goods of equivalent quality and
price at a later date.
The customer will be informed immediately if the service is unavailable and the
consideration – if already paid – will be refunded immediately.
If the consumer orders the goods electronically, the text of the contract shall be saved by
Clematiskulturen Westphal and sent to the customer by email on request, together with these GTC
.
§ 3 Prices / terms of payment
All prices shown at the point of sale or in the online store of Clematiskulturen Westphal
are in euros ( € ) including statutory VAT and plus shipping or
delivery costs. The shipping costs depend on the country to which delivery is to be made and are indicated separately at
.
§ 4 Payment / Retention of title
The customer can choose between the payment methods offered during the ordering process.
Costs for any chargebacks due to incorrect information are to be borne by the customer.
The consumer only has a right of set-off or retention if his
counterclaims have been legally established, are undisputed or have been recognized by Clematiskulturen
Westphal.
Clematiskulturen Westphal retains title to the delivered goods until full payment of the respective invoice amount
(final and unconditional crediting of the total purchase price including any
ancillary costs).
Ownership of the reserved goods shall not be lost even if the entrepreneur as
purchaser plants the delivered plants on his or a third party’s
property until resale. If the customer has resold the goods before full payment
, his claims and receivables against the customer or third parties
arising from the resale shall be deemed assigned to Clematiskulturen
Westphal up to the amount of his own claim. In the event of access by third parties to the goods, for example through seizure, the customer must inform
immediately of the name and address of the third party.
§ 5 Delivery / shipping / transfer of risk / dimensions and samples
- The shipping costs are borne by the customer.
- Delivery shall be made from the location of Clematiskulturen Westphal to the delivery address specified by the customer
. - Partial deliveries and partial services that are reasonable for the customer are permitted and are expressly reserved
. - Fixed delivery dates are only binding for Clematiskulturen Westphal if confirmed in writing
. - In the event of unforeseen obstacles to delivery, for example in the event of weather disasters
such as drought, frost, hail or other circumstances such as epidemics, strikes, lockouts,
operational disruptions, war, official interventions, etc., the delivery period shall be extended for the duration of the obstacle, which are beyond the control of
Clematiskulturen Westphal, the delivery period shall be extended for the duration of the hindrance.
If delivery becomes impossible due to these circumstances, Clematiskulturen Westphal shall be released from
the obligation to deliver.
In these cases, both Clematiskulturen Westphal and the customer may withdraw from the contract
. Claims for damages are excluded unless Clematiskulturen
Westphal or a legal representative has acted with intent or gross negligence. - If the buyer is a consumer, the risk of accidental loss or accidental
deterioration of the goods sold shall only pass to the buyer when the goods are handed over.
This also applies to sales shipment. - If the buyer is an entrepreneur, the risk of accidental loss and accidental
deterioration of the goods sold shall pass to the buyer upon handover, in the case of sale to destination upon
delivery of the goods to the forwarding agent, carrier or other person designated to carry out the
shipment. - All dimensions are approximate. Deviations upwards or downwards are permissible within reasonable limits
. Samples only show the average condition. Not
all plants must turn out like the sample. All illustrations, color, shape and size specifications
of the plants on brochures, the website or other advertising media are only exemplary and
approximate.
§ 6 Warranty
The statutory warranty rights apply.
In particular, a warranty for the varietal authenticity
or the growth of the delivered plants is only assumed after prior written request by the
customer and is otherwise excluded.
If the buyer is an entrepreneur, Clematiskulturen Westphal shall initially decide at its own discretion whether subsequent performance is to be effected by rectification of defects or replacement delivery
.
If the buyer is a consumer, he shall initially have the choice of whether subsequent performance is to be effected by rectification of defects
or replacement delivery. However, Clematiskulturen Westphal is entitled to refuse the type of
supplementary performance chosen if it is only possible at disproportionate cost and
another type of supplementary performance remains without significant disadvantages for the consumer.
If the supplementary performance fails, the customer may in principle demand a reduction of the
remuneration (reduction) or rescission of the contract (withdrawal) at his discretion. In the event of only a
minor breach of contract, in particular in the case of only minor defects, the customer
is not entitled to withdraw from the contract.
Entrepreneurs must notify
in writing of obvious defects within a period of 8 days from receipt of the goods, otherwise the assertion of the warranty claim
is excluded.
If the customer chooses
to withdraw from the contract due to a legal or material defect after subsequent performance has failed, he shall not be entitled to any further claim for damages due to the
defect.
If the customer chooses to claim damages after subsequent performance has failed, the goods shall remain with the
customer if this is reasonable for him. Compensation shall be limited to the difference between the
purchase price and the value of the defective item. This does not apply if the breach of contract was caused fraudulently by
Clematiskulturen Westphal.
The warranty period for entrepreneurs is one year from delivery of the goods, for consumers
two years.
§ 7 Liability - The liability of Clematiskulturen Westphal towards a consumer as a
customer in the event of slightly negligent breaches of duty is limited to the foreseeable,
contract-typical, direct average damage according to the type of goods; this also applies to slightly negligent
breaches of duty by the legal representatives or vicarious agents of Clematiskulturen
Westphal. - In commercial transactions with entrepreneurs, Clematiskulturen Westphal is not liable for
slightly negligent breaches of insignificant contractual obligations. Rather, for
entrepreneurs, regardless of the type of breach of duty, including unauthorized actions
claims for damages are generally excluded, unless there is intentional or gross
negligence. - In the event of a breach of material contractual obligations, Clematiskulturen Westphal shall be liable for any
negligence, but only up to the amount of the foreseeable damage. Claims for
lost profit, saved expenses, third-party claims for damages and other
indirect and consequential damages are excluded, unless a quality feature guaranteed by Clematiskulturen
Westphal is specifically intended to protect the customer against such
damages. - The above limitations of liability do not apply to the customer’s claims arising from
product liability. Furthermore, the limitations of liability do not apply to bodily injury, damage to health or loss of life of the customer attributable to Clematiskulturen
Westphal.
§ 8 Right of withdrawal
Consumers within the meaning of § 13 BGB have a statutory right of withdrawal when concluding distance selling transactions. § Section 13 of the German Civil Code (BGB) have a statutory right of withdrawal when concluding a distance selling transaction
, about which the following information is provided in accordance with the statutory provisions:
Right of withdrawal
You have the right to withdraw from this contract with
within fourteen days without giving any reason. The withdrawal period is fourteen days from the day on which you or a third party named by
, who is not the carrier, took possession of the last
goods.
To exercise the right to cancel, you must inform us (Clematiskulturen F.M. Westphal, Peiner
Hof 7, 25497 Prisdorf, phone: +49 (0) 4101 / 74104, fax: +49 (0) 4104 / 781113, e-mail: kontakt@clematis-westphal.de) of your decision to cancel this contract by a clear statement (e.g. a letter sent by
post, fax or e-mail). You may use the attached withdrawal form, but
is not obligatory.
To meet the withdrawal deadline, it is sufficient for you to send your communication concerning your exercise of the right of withdrawal to
before the withdrawal period has expired.
Consequences of withdrawal
If you withdraw from this contract, we will reimburse to you all payments received from you
, including the costs of delivery (with the exception of the supplementary costs
resulting from your choice of a type of delivery other than the least expensive type of standard delivery offered by us
), without undue delay and in any event not later than 14
days from the day on which we are informed about your decision to withdraw from this
contract. For this repayment, we will use the same
means of payment that you used for the original transaction, unless expressly agreed otherwise with
; under no circumstances will you be charged any fees for
this repayment. We may refuse repayment until we have received the
goods back or until you have provided proof that you have returned the
goods, whichever is the earlier.
You must return or hand over the goods to us at
immediately and in any event no later than fourteen days from
the day on which you notify us of the revocation of this contract. The deadline is met if you send the goods before the
deadline of fourteen days has expired. You bear the direct costs of returning the
goods.
You only have to pay for any loss in value of the goods if this
loss in value is due to handling of the goods that is not necessary for checking the condition, properties and functionality of the
goods.
Exceptions to the right of withdrawal
The right of withdrawal does not apply to the following distance selling contracts: - Contracts for the supply of goods which are not prefabricated and for the manufacture of which
an individual selection or determination by the consumer is decisive or which
are clearly tailored to the personal needs of the consumer; - Contracts for the delivery of goods that can spoil quickly or whose expiry date
would be quickly exceeded; - Contracts for the delivery of sealed goods that are not suitable for return for reasons of health protection or
hygiene if their seal has been removed after delivery
; - Contracts for the delivery of goods if they have been inseparably mixed with other goods after delivery due to their
nature; - Contracts for the supply of sound or video recordings or computer software in a
sealed package if the seal has been removed after delivery.
Sample cancellation form
If you want to revoke the contract, please fill out this form and
send it back to :
Clematis cultures F.M. Westphal,
Peiner Hof 7,
25497 Prisdorf,
I/we hereby revoke () the contract concluded by me/us () for the purchase of
of the following goods () / the provision of the following services () :
………………………………………………………………………………
Ordered on () / received on () : ………………………………………….
Name of the consumer(s) : ………………………………………………..
Address of the consumer(s) : …………………………………………….
Date , Signature of consumer(s) : …………………………………
(*) Delete as applicable
§ 9 Final provisions
The contractual relationship shall be governed by the law of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods. The statutory provisions on the validity of
mandatory consumer protection law remain unaffected.
The exclusive place of jurisdiction for all claims arising from the contractual relationship between the
customer and Clematiskulturen Westphal is Hamburg, provided that the customer is a
registered trader, a legal entity under public law or a special fund under public law
. . The same applies if the customer does not have a general place of jurisdiction in
Germany or whose place of residence or habitual abode is unknown at the time the action is brought
.
Should individual provisions of the contract with the customer, including these General Terms and Conditions
, be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions of the contract or these General Terms and Conditions
. The wholly or
partially invalid provision shall be replaced by a provision that comes closest to the intended
meaning and economic success of the invalid provision. The same
applies in the event of any gaps in the contractual relationship between the parties that need to be filled.
Status : 01 May 2017
