Conditions Of Use

1. Scope
2. Conclusion of Contract
3. Contractual Right of Revocation
4. Prices and Terms of Payment
5. Terms and Conditions of Delivery and Shipment
6. Force Majeure
7. Delay of Performance at Customer’s Request
8. Retention of Title
9. Liability for Defects/ Warranty
10. Liability
11. Statute of Limitations
12. Retention Assignment
13. Applicable Law, Place of Jurisdiction

1) Scope

1.1 These General Standard Terms and Conditions (hereinafter “GTC”) of Grow in AG (hereinafter “Seller”) shall apply to all contracts for the delivery of goods concluded by an entrepreneur (hereinafter “Customer”) with the seller with respect to the goods displayed by the seller in the seller’s online shop. Inclusion of the customer’s own terms and conditions shall be rejected herewith, unless otherwise agreed.

1.2 These General Standard Terms and Conditions shall also apply exclusively if the seller carries out delivery to the customer without any special reservation in the knowledge that the customer’s terms and conditions are contrary to or deviate from these terms and conditions.

1.3 An entrepreneur within the meaning of these GTC is a natural person or legal entity or a partnership with legal capacity who, when concluding a legal transaction, acts in the exercise of the entrepreneur’s commercial or self-employed professional activity.

2) Conclusion of Contract

2.1 The product descriptions presented in the seller’s online shop do not constitute binding offers on the part of the seller, but rather serve the submission of a binding offer by the customer.

2.2 The customer can submit the offer via the online order form integrated into the seller’s online shop. After placing the selected goods and/or services in the virtual shopping basket and having gone through the electronic ordering process, the customer submits a legally binding contract offer with regard to the goods and/or services contained in the shopping basket by clicking the button that concludes the ordering process. Furthermore, the customer can also submit the offer to the seller by telephone, fax, e-mail, post or online contact form.

2.3 The seller may accept the customer’s offer within five days,

by sending the customer a written order confirmation or an order confirmation in text form (fax or e-mail), whereby receipt of the order confirmation by the customer shall be determining in this respect, or

by delivering the ordered goods to the customer, whereby receipt of the goods by the customer shall be determining in this respect, or

by requesting payment from the customer after the customer places the order, or

if payment by direct debit is offered and the customer chooses this method of payment by collecting the total price from the customer’s bank account, whereby the time at which the customer’s account is debited shall be determining in this respect.

If several of the aforementioned alternatives are given, then the contract shall be concluded at the point in time where one of the aforementioned alternatives occurs first. The period for acceptance of the offer begins on the day after dispatch of the offer by the customer and ends upon expiry of the fifth day following dispatch of the offer. If the seller does not accept the customer’s offer within the aforementioned period, then this shall be deemed as rejection of the offer with the consequence that the customer is no longer bound by the customer’s declaration of intent.

2.4 When an offer is submitted via the seller’s online order form, the text of the contract is stored by the seller and sent to the customer in text form (e.g. e-mail, fax or letter) together with these General Standard Terms and Conditions after the customer’s order has been sent. In addition, the contract text is archived on the seller’s website and can be invoked free of charge by the customer via the latter’s password-protected customer account by entering the corresponding login data, provided that the customer has created a customer account in the seller’s online shop prior to sending the customer’s order.

2.5 Before placing a binding order via the seller’s online order form, the customer can identify possible input errors by carefully reading the information displayed on the screen. An effective technical means for better recognition of input errors can be the zoom function of the browser, with which the display on the screen is enlarged. As part of the electronic ordering process, the customer can correct the customer’s entries using the customary keyboard and mouse functions until the customer clicks on the final button of the order process.

2.6 Only German and English are available for conclusion of the contract.

2.7 As a rule orders are and contact is established via e-mail and automated order processing. The customer shall ensure that the e-mail address provided by the customer for order processing is correct, so that the e-mails sent by the seller can be received at this address. In particular, when using SPAM filters, the customer must ensure that all e-mails sent by the seller or third parties commissioned by the seller to process the order can be delivered.

2.8 If the parties have agreed on special terms and conditions, then these as a rule do not apply to current and future contractual relationships with the customer.

2.9 If for financial reasons the customer is unable to meet the customer’s obligations towards the seller, then the seller may terminate existing reciprocal agreements with the customer without notice through rescission. This also applies in the event of an insolvency request by the customer. Section 321 of the German Civil Code [BGB] and Section 112 of the German Insolvency Statute [InsO] shall remain unaffected. The customer shall inform the seller in writing in good time of any imminent insolvency.

3) Contractual Right of Revocation

The seller grants the customer a contractual right of revocation in accordance with the following terms and conditions:

3.1 The customer has the right to revoke this contract within fourteen days without stating any reasons.

The withdrawal period shall be fourteen days from the date on which the customer or a third party designated by the customer, who is not the carrier, took possession of the last goods.

3.2 In order to exercise the right of withdrawal, the customer must inform the seller of the decision to withdraw from the contract by means of a clear declaration in text form (e.g. a letter sent by mail, fax or e-mail). To comply with the revocation period, it suffices for the customer to send notification of the exercise of the right of revocation prior to expiry of the revocation period.

3.3 If the customer revokes the contract in due form and time, then the seller shall reimburse the customer for the purchase price paid, but not the costs for shipment and any costs incurred for the method of payment chosen by the customer. The repayment of the purchase price shall take place within fourteen days from the day on which the seller receives notification that the contract has been revoked.

3.4 The seller may refuse repayment until the goods have been returned in full.

3.5 The customer must return the goods to the seller without delay and in any case within fourteen days at the latest as of the day on which the customer informs the seller of revocation of the agreement. The deadline is met if the customer sends the goods prior to expiration of the fourteen-day deadline.

3.6 The customer shall be responsible for the costs and the risk of returning the goods.

3.7 The customer shall be liable for any loss in value of the goods in accordance with statutory provisions.

3.8 If the customer revokes the contract in due form and time, then the seller can charge the customer a processing fee in the amount of 10% of the net order value for the processing costs incurred. However, the customer shall be permitted to prove that the seller has incurred no or significantly lower expenses.

4) Prices and Terms of Payment

4.1 Unless otherwise stated in the seller’s product description, the prices quoted shall be net prices plus the statutory value added tax. Packaging and shipping costs, loading, insurance (in particular transport insurance), customs duties and charges may be charged separately.

4.2 For deliveries to countries outside the European Union, additional costs may be incurred in individual cases for which the seller is not responsible and which are to be borne by the customer. These include, for example, costs for the transfer of money by credit institutions (e.g. transfer fees, exchange rate fees) or import duties or taxes (e.g. customs duties). Such costs may also be incurred in relation to the transfer of money if the delivery is not made to a country outside the European Union but the customer makes the payment from a country outside the European Union.

4.3 The customer has various payment options available that are specified in the seller’s online shop.

4.4 If advance payment by bank transfer has been agreed, then payment shall be due immediately after conclusion of contract, unless the parties have agreed a later due date.

4.5 If the payment method “IMMEDIATE” is selected, then payment is processed by the payment service provider SOFORT GmbH, Theresienhöhe 12, 80339 Munich, Germany (hereinafter “IMMEDIATE”). In order to be able to pay the invoice amount via “IMMEDIATE”, the customer must have an online banking account with PIN/TAN procedure activated for participation in “IMMEDIATE”, authenticate himself or herself accordingly during the payment transaction and confirm the payment order to “IMMEDIATE”. The payment transaction will be executed immediately thereafter by “IMMEDIATE” and the customer’s bank account will be debited. The customer can find more detailed information on the “IMMEDIATE” payment method on the Internet at https://www.klarna.com/sofort/.

4.6 If the payment method delivery on account is selected, then the purchase price is due after the goods have been delivered and invoiced.

4.7 If the method of payment delivery on account is selected, then the purchase price is to be paid without deduction within 14 (fourteen) days of receipt of the invoice, unless otherwise agreed. The seller reserves the right to carry out a credit check when the payment method delivery on account is selected and to reject this payment method in the event of a negative credit check.

4.8 If the payment method delivery on account is selected, then the purchase price is to be paid without deduction within 7 (seven) days as of receipt of the invoice, unless otherwise agreed. The seller reserves the right to carry out a credit check when selecting the payment method delivery on account and to reject this payment method in the event of a negative credit check.

4.9 If the payment method “PayPal invoice” is selected, then the seller assigns the payment claim to PayPal. Before accepting the seller’s declaration of assignment, PayPal carries out a credit check using the transmitted customer data. The seller reserves the right to refuse the customer the payment method “PayPal invoice” in case of a negative check result. If the payment method “PayPal invoice” is permitted by PayPal, then the customer must pay the invoice amount to PayPal within 30 days of receipt of the goods, unless PayPal has specified a different payment term. In this case the customer can only make payment to PayPal with the effect of discharging the debt. However, even in the event of assignment of claims, the seller remains responsible for general customer inquiries, e.g. regarding the goods, period of delivery, dispatch, returns and complaints, declarations of revocation and returns or credit notes. In addition, the General Standard Terms and Conditions of Use for use of the PayPal invoice purchase, which can be viewed at https://www.paypal.com/de/webapps/mpp/ua/pui-terms, shall apply.

4.10 If the SEPA Direct Debit payment method is selected, then the invoice amount is due for payment after a SEPA direct debit mandate has been issued, but not prior to expiration of the period for advance information. The debit note is collected when the ordered goods leave the seller’s warehouse, but not prior to expiration of the period for advance information. Pre-notification means any communication (e.g. invoice, policy, and contract) from the seller to the customer announcing a debit via SEPA direct debit. If the direct debit is not honoured due to insufficient funds or due to the specification of incorrect bank details, or if the customer objects to the direct debit, although the customer is not entitled to do so, then the customer shall be responsible for the fees arising out of the negative booking operation from the respective credit institution if the customer is responsible for this.

4.11 Payment shall be deemed as received as soon as the equivalent value has been credited to one of the seller’s accounts. In the event of default in payment, the seller shall be entitled to default interest in the amount of 10 percentage points above the respective base interest rate. The seller’s other statutory rights in the event of default of payment by the customer shall remain unaffected. If receivables are overdue, then incoming payments shall first be applied to any costs and interest, and then against the oldest receivable.

4.12 Should unforeseeable cost increases occur (e.g. currency fluctuations, unexpected price increases by suppliers, etc.), then the seller is entitled to pass on the price increase to the customer. However, this shall only apply if delivery is to take place more than four months after conclusion of the contract as agreed.

4.13 If payment is made by means of a payment method offered by PayPal, then payment is processed by the payment service provider PayPal (Europe) S.à r.l. et Cie, S.C.A., 22-24 Boulevard Royal, L-2449 Luxembourg (hereinafter referred to as “PayPal”), subject to the PayPal Terms of Use, available at https://www.paypal.com/de/webapps/mpp/ua/useragreement-full, or – if the customer does not have a PayPal account – subject to the terms and conditions for payments without a PayPal account, available at https://www.paypal.com/de/webapps/mpp/ua/privacywax-full.

4.14 The seller reserves the right to determine a minimum order value for deliveries outside Germany. If necessary the amount of the minimum order value is separately communicated to the customer in the seller’s online shop.

5) Terms and Conditions of Delivery and Shipment

5.1 Unless otherwise agreed, goods shall be delivered by shipment to the delivery address specified by the customer. The delivery address specified in the seller’s order processing shall be determining for processing the transaction.

5.2 Delivery shall be “free curb” in the case of goods delivered by freight forwarder, i.e. up to the public curb closest to the delivery address, unless otherwise stated in the shipping information in the seller’s online shop and unless otherwise agreed.

5.3 The seller shall be entitled to make partial deliveries, insofar as this is reasonable for the customer. In the case of permissible partial deliveries, the seller shall also be entitled to issue partial invoices.

5.4 The seller reserves the right to withdraw from the contract in the event of incorrect or improper self-delivery. This applies only in the event that the seller is not responsible for the non-delivery and has concluded a specific hedging transaction with the supplier with due care. The seller shall make all reasonable efforts to procure the goods. The customer shall be immediately informed and the consideration immediately reimbursed in the event of non-availability or only partial availability of the goods.

5.5 The risk of accidental loss and accidental deterioration of the sold goods shall pass to the customer as soon as the seller has delivered the goods to the freight forwarder, the carrier or any other person or institution designated to carry out the shipment. This also applies if the seller bears the costs of transport. Transport insurance is only taken out on special request and at the customer’s expense.

5.6 If delivery is not possible for reasons for which the customer is responsible, e.g. because the goods do not fit through the customer’s entrance door, front door or staircase, or because the customer is not found at the delivery address provided by the customer, although the delivery date was announced to the customer within a reasonable period, then the customer shall be responsible for the costs of unsuccessful delivery and is obliged to pay a flat-rate compensation for delayed completion. This shall amount to 1% for each full week of delay, but in total not more than 8% of the value of the total delivery or the part of the total delivery that is not accepted. The contracting parties shall be at liberty to prove greater or lesser damage.

5.7 If dispatch of the goods to the customer is delayed for reasons for which the customer is responsible, then the risk shall pass to the customer with the notification of readiness for dispatch. The customer shall be responsible for any storage costs incurred after passing of the risk.

5.8 In the case of collection by the customer the seller first informs the customer by e-mail that the goods ordered are ready for collection. After receipt of this e-mail the customer can pick up the goods after consulting the seller. In this case no shipping costs will be charged.

5.9 Parcels weighing up to 31.5 kg are generally shipped by Deutsche Post AG or DHL. Shipping requests can be indicated, but Grow In AG reserves the right to make the final decision. All prices are exclusive of delivery costs and handling charge. These can be found in the order confirmation. A net processing fee of EUR 10.00 will be charged for an order value of less than EUR 150 (net value of goods).

6) Force Majeure

In the event that force majeure affects performance of the agreement, the seller shall be entitled to postpone delivery for the duration of the hindrance and, in the event of longer-term delays, to withdraw in whole or in part without entailing any claims against the seller as a result. Force majeure shall be all unforeseeable events for the seller or events which – even if they were foreseeable – are beyond the seller’s sphere of influence and whose effect on performance of the agreement cannot be prevented by reasonable efforts on the part of the seller. Any legal claims on the part of the customer shall remain unaffected.

7) Delay of Performance at Customer’s Request

If dispatch or delivery of the goods is delayed at the customer’s request by more than one month after notification of readiness for dispatch, then the customer may be charged storage fees amounting to 0.5% of the purchase price for each further month commenced, but not exceeding a total of 5% of the purchase price. The contracting parties shall be at liberty to prove greater or lesser damage.

8) Retention of Title

8.1 The seller shall retain title to the delivered goods until the purchase price owed has been paid in full. Furthermore, the seller shall retain title to the delivered goods until all of the seller’s claims arising out of the business relationship with the customer have been fulfilled.

8.2 In the event that the delivered goods are processed, the seller shall be considered as the manufacturer and acquires ownership of the newly created goods. If the processing takes place together with other materials, then the seller acquires ownership in proportion to the invoice value of the seller’s goods to that of the other materials. If in the event that the goods of the seller are combined or commixed with an item of the customer, the latter is to be regarded as the principal item, then co-ownership of the item shall pass to the seller in proportion to the invoice value of the seller’s goods to the invoice value or, in the absence thereof, to the market value of the principal item. In such cases the customer shall be the custodian.

8.3 The customer may neither pledge nor transfer by way of security any objects subject to reservation of ownership or rights. The customer is only permitted to resell the goods in the normal course of business as a reseller on the condition that the customer has effectively assigned his or her claims against his or her customers to the seller in connection with the resale and the customer transfers ownership to his or her customer subject to payment. By concluding the contract the customer assigns his or her claims against his or her customers in connection with such sales by way of security to the seller, who at the same time accepts this assignment.

8.4 The customer shall immediately notify the seller of access to the goods owned or co-owned by the seller or to the assigned claims. Insofar as the seller’s claim is due the customer shall immediately pay the seller any amounts assigned to the seller and collected by the customer.

8.5 If the value of the security interests of the seller exceeds the amount of the secured claims by more than 10%, then the seller shall release a corresponding share of the security interests at the customer’s request.

9) Liability for Defects / Warranty

If the purchase object is defective, then the provisions of statutory liability for defects shall apply. The following shall apply by way of departure:

9.1 Claims for defects do not arise in the case of natural wear and tear or damage that occurs after passage of the risk as a result of improper or negligent handling, excessive stress, unsuitable equipment or special external influences that are not assumed under the contract. If the customer or third parties carry out improper modifications or repair work, then no claims for defects shall obtain for these and the resulting consequences, unless the customer is able to prove that the contested malfunction was not caused by these modifications or repair work.

9.2 In the case of new goods the limitation period for claims based on defects shall be one year as of passage of the risk. In the case of used goods any rights and claims for defects shall be excluded.

9.3 The above regulated limitations of liability and shortened limitation periods do not apply

for items that have been used for a building in accordance with their normal use and have caused its defectiveness,

for claims for damages and reimbursement of expenses on the part of the customer,

in the event that the seller maliciously concealed the defect, and

for the right of recourse in accordance with Section 478 of the German Civil Code [BGB].

9.4 In the event of subsequent performance, the seller shall have the right to choose between reworking and substitute delivery.

9.5 The limitation period shall not recommence if substitute delivery is made within the scope of liability for defects.

9.6 If subsequent performance has taken place by way of substitute delivery, then the customer shall be obliged to return the initially delivered goods to the seller within 30 days. The return package must contain the reason for the return, the name of the customer and the number assigned for purchase of the defective goods, which enables the seller to assign the returned goods. The seller shall not be obliged to accept returned goods and to repay the purchase price as long as and to the extent that assignment of the return is not possible for reasons for which the customer is responsible. The customer shall be responsible for the costs of a new shipment.

9.7 If the seller delivers an item free of defects for the purpose of subsequent performance, then the seller may claim compensation for use from the customer in accordance with Section 346 Paragraph 1 of the German Civil Code [BGB]. Other statutory claims shall remain unaffected.

9.8 If the customer acts as a merchant within the meaning of Section 1 of the German Commercial Code [HGB], then the customer shall be subject to the commercial duty to examine and provide notice of defects in accordance with Section 377 of the German Commercial Code [HGB]. If the customer fails to comply with the notification obligations stipulated therein, then the goods shall be deemed to have been approved.

10) Liability

The seller shall be liable to the customer for all contractual, quasi- contractual and statutory, including tortious claims for damages and reimbursement of expenses as follows:

10.1 The seller shall be liable without limitation for any legal reason

in the case of intent or gross negligence,

in the case of intentional or negligent injury to life, limb or health,

on the basis of a promise of guarantee, unless otherwise agreed in this respect,

due to mandatory liability, as in accordance with the German Product Liability Act [ProdHaftG].

10.2 If the seller negligently violates a substantial contractual obligation, then liability shall be limited to foreseeable damage typical for the contract, unless unlimited liability is assumed in accordance with the above Clause. Substantial contractual obligations are obligations which the contract imposes on the seller in accordance with its content in order to achieve the purpose of the contract, the fulfilment of which is essential for proper performance of the contract and on whose compliance the customer may regularly rely.

10.3 Any other liability on the part of the seller shall be excluded.

10.4 The above liability regulations shall also apply with regard to the seller’s liability for the seller’s vicarious agents and legal representatives.

11) Statute of Limitations

With the exception of the claims regulated under the item “Liability for Defects / Warranty”, customer claims against the seller come under the statute of limitations one year after knowledge of the facts giving rise to the claim, but no later than five years after performance of the service, unless liability is unlimited in accordance with the aforementioned Clause.

12) Retention, Assignment

12.1 Rights of retention and refusal of performance on the part of the customer shall be excluded, unless the seller does not dispute the underlying counterclaims or these are the subject of declaratory judgment.

12.2 Any assignment by the customer of claims arising out of the contract concluded with the customer, in particular any assignment of claims for possible defects by the customer, shall be excluded.

13) Applicable Law, Place of Jurisdiction

13.1 The laws of the Federal Republic of Germany shall apply to any and all legal relationships between the contracting parties to the exclusion of the laws governing the international sale of movable goods.

13.2 If the customer acts as a merchant, a legal entity under public law or a special fund under public law with its registered office in the territory of the Federal Republic of Germany, then the exclusive place of jurisdiction for all disputes arising out of this agreement shall be the principal place of business of the seller. If the customer’s principal place of business is outside the territory of the Federal Republic of Germany, then the exclusive place of jurisdiction for all disputes arising out of this agreement shall be the principal place of business of the seller. In the above cases, however, the seller shall in any case be entitled to appeal to the court at the customer’s place of business.