Terms and Conditions of any Commercial Documents of SIA “Hortimed”, Elizabetes Street 2A-2, Riga, LV-1010, Latvia
1. General Terms
1.1. The following Terms and Conditions apply for all and any sales and deliveries commercial document of SIA “Hortimed”, registration number: 40203047078, legal address: Elizabetes Street 2A-2, Riga, LV-1010, Latvia, a private limited liability company incorporated and existing under the laws of Republic of Latvia (hereinafter – Hortimed) with regard to its sold products (hereinafter – Goods), including, but not limited to all Invoices, Pre-Payment Invoices and any other invoices, Commercial Documents, Exclusivity Agreements, Purchase orders, Sales Agreements, Delivery Agreements and other commercial documents (hereinafter – Commercial Documents).
1.2. All commercial transactions are subject to conditions set out hereinafter. Terms and Conditions shall be deemed to be incorporated in and to be a condition and integral part of any Commercial Documents between Hortimed and any person, firm or company which buys the Goods from the Hortimed.
1.3. Any Articles of Commercial Documents between Hortimed and the Buyer conflicting with or deviating from these Terms and Conditions shall only apply if expressly approved in writing by Hortimed.
1.4. Unless provided otherwise subsequently, the Incoterms in the version valid at the time a respective Commercial Documents is concluded shall apply both for domestic orders and for orders from abroad.
2.1. Any offers from Hortimed are subject to change.
2.2. Any third-party arrangement made with sales outlets, representatives and agents of Hortimed prior to the conclusion of a Commercial Documents shall require written confirmation from Hortimed to become valid.
2.3. A binding Commercial Documents only exists, when the Buyer has received a written order confirmation from Hortimed.
3.1. Except where the Buyer collects the Goods, all prices for Goods delivered by rail are carriage paid to the agreed station, delivered by lorry carriage paid to the depot of the recipient and delivered by ship carriage paid to the designated port of destination.
3.2. The Buyer shall send the original bills of carriage to Hortimed on request.
3.3. In the case of collection, the risk passes to the Buyer as soon as the Goods are handed over to the person carrying out the transport. In case of delivery by lorry, rail or ship, the risk passes to the Buyer as soon as the Goods are loaded on carrier.
3.4. As the manufacture of our products is weather-dependent, delivery is made only roughly on specified delivery dates within the scope of availability unless specific delivery deadlines or dates have been agreed as fixed. Partial deliveries are permitted.
3.5. The commencement of an agreed delivery period presupposes that the Buyer duly meets his obligations on time.
4.1. The Goods are invoiced at the list prices applicable on the day the order is received. Unforeseeable additional costs incurred by Hortimed, for example due to weather conditions or statutory measures (e.g. Green Dot, road tolls, taxes), are paid by the Buyer separately.
4.2. All prices are subject to alteration without notice. Hortimed reserves the right to invoice at prices ruling at the date of dispatch irrespective of the date of order.
4.3. All prices are net unit prices in Euro, unless credit facilities have been arranged or other arrangements been made. The statutory VAT applicable on the day of performance or delivery is added to this. Where credit facilities have been granted to the Buyer, payment must be made in accordance with respective credit agreement.
5.1. Invoice totals are due and payable as indicated on each invoice separately. If the Buyer fails to pay full amount according to Commercial Document by the due date specified in it, then the Buyer defaults on the payment.
5.2. The place of performance for payments is the head office of Hortimed.
5.3. If the Buyer fails to pay or fails to pay in full by the due date, then Hortimed may exercise the right to withdraw from the Commercial Documents without any penalty. In this case Buyer shall be liable for all deliveries made by Hortimed that have not been paid for. Hortimed will not be obliged to fulfil further delivery obligations and shall be able to declare other outstanding claims against the Buyer to be due immediately. Hortimed is not obliged to repay partially paid sum from the Buyer. This amount will cover all costs incurred by Hortimed.
5.4. Hortimed shall reserve the right, at any time during credit period to serve notice requiring immediate payment by the Buyer in any of the following circumstances:
(a) the Buyer has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or enters into liquidation; or
(b) the Buyer suffers or allows any execution, whether legal or equitable, to be levied on his/its property or obtained against him/it, or fails to observe or perform any of his/its obligations under Commercial Documents between Hortimed and the Buyer; or
(c) the Buyer encumbers or in any way charges any of the Goods; or
(d) the Buyer fails to pay any amount owing to Hortimed which shall have come due; or
(e) the Buyer is in breach of any Commercial Documents with Hortimed; or
(f) in the opinion of Hortimed, the Buyer is or is likely to become insolvent; or
(g) the Buyer suffers a change of management or control which in the opinion of Hortimed shall adversely affect its suitability for extended credit.
5.5. Buyer is obliged to pay as agreed between the parties. If the Buyer fails to pay on time, Hortimed shall be entitled to interest from the day on which payment was due and to compensation for recovery costs. The rate of interest shall be as agreed between the parties or otherwise 0.1% per day. In case reminders about due payments are sent out, Hortimed is entitled to charge a reminder fee.
5.6. In case of failed payment, Hortimed is entitled to refer the matter to debt collection without notice. The Buyer is liable to pay all the costs related to debt collection.
5.7. If the Buyer fails to pay on time, Hortimed is entitled to withhold all further deliveries to the Buyer, regardless of whether the deliveries are mutually interrelated.
5.8. Should the Buyer be in default of acceptance or culpably violate other duties of cooperation, then Hortimed shall be entitled to demand compensation for any accrued damages, including additional costs. Hortimed reserves the right to assert further claims. Should the aforementioned conditions exist, the risk of accidental loss or deterioration of the Goods shall pass to the Buyer at the time the Buyer is deemed in default of acceptance or payment.
5.9. In event of Hortimed accepting bills of exchange, the Buyer shall be required to bear the incidental costs.
5.10. Cheques and bills of exchange shall only be considered on account of payment and shall not constitute payment as such. These provisions shall also apply if the Buyer has been granted a credit line, post-payment or a letter of credit for the payment.
6. Withholding of Payments
6.1. The Buyer has no rights to set-off payments against the Horimed’s claims, unless the counterclaim has been established as legally valid by an arbitral tribunal, court, or is due and uncontested by Hortimed.
6.2. The Buyer has no rights to reserve or withhold payment or raise any objections based on claimed defects or any other grounds, unless Hortimed has accepted the Buyer’s right in writing or the Buyer’s right has been legally established by an arbitral tribunal or court.
7.1. In the case of shipments abroad, Hortimed shall only pay customs charges, taxes and other duties, as well as costs for customs clearance and processing at the borders of transit countries or of the destination country, if Hortimed has expressly agreed to do so in writing.
7.2. The Buyer must pay all bank transfer and any charges related to payment for Goods, unless Hortimed has expressly agreed to do so in writing.
7.3. Any increases of transport costs between the conclusion of the business arrangement and delivery of the Goods shall be borne by the Buyer; the same shall apply in the case of changes to statutory fees, costs, charges and conditions.
8. Cancelation of Orders
8.1 The Buyer cannot cancel or change orders later than 4 weeks before the indicated dispatch date. Hortimed may, at its discretion, accept to change the order, but any additional costs incurred will be charged to the Buyer.
8.2 If the Buyer in spite of the above clause fully or partially cancels or changes an order, the Buyer will be liable for any loss of profit and any other losses incurred by the Hortimed.
9. Structure of the Goods
9.1. Hortimed delivers standard commercial Goods suitable for ordinary use. They are delivered in (packaging) units and/or volumes in compliance with the DIN EN 12 580 standard.
9.2. The structure of the raw peat (raised-bog peat) and other organic raw materials for peat and peat products may be subject to natural variations. The weight of peat and peat products may also vary depending on structure and moisture. Any deviation of the Goods from sales samples or previous consignments shall therefore not constitute a defect of quality, unless the Buyer cannot be reasonably expected to accept such deviation.
9.3. Whilst all effort will be done to dispatch the exact quantities ordered, due to weight restrictions on certain vehicles, containers, etc., Hortimed reserves the right to dispatch the nearest combination to that ordered.
10. Inspection of the Goods
10.1. With respect to the obligation to inspect and notify of defects, the notification of defects must be issued in writing within notification period. Hortimed must be notified of obvious defects particularly with respect to the identity and quantity of the Goods by no later than 2 days after delivery and notified of such defects as can be found only in the course of the immediate due inspection by no later than 8 days after delivery. Notification of hidden defects must be given immediately on discovery. Prompt dispatch of the notification is adequate in order to comply with the term. Hortimed must be informed immediately of transport damage regardless of the aforementioned deadlines. If no notification is given by no later than 14 days after delivery, the products are deemed to adhere to quality standard.
10.2. In the event of defects, the Buyer must give Hortimed opportunity to deliver a defect free item within a reasonable period (subsequent fulfilment). The defective product must be returned. If the subsequent fulfilment has failed or if a reasonable period set by the Hortimed for the subsequent fulfilment has expired without success or is unnecessary in accordance with the statutory provisions, then the Hortimed shall reduce the purchase price in amount of defected product or (in the case of significant defects) Buyer can withdraw from the mutual business arangement.
10.3. The culture substrates and soil additives Hortimed supplies are natural products of which the properties (e.g. color, structure, composition) can naturally differ from one delivery to the next. In order to avoid culture risks arising in the products due to microbial and chemical reaction processes as a result of improper handling and storage, our products are to be used only for the culture purposes for which they are intended. Products supplied loose and packaged products should be stored dry and cool, i.e. protected from sun and precipitation as well as contamination by foreign matter, on a concrete/paved floor in roofed storage facilities. They must be used soon within the products shell life, as long-term storage can impair the quality. In particular, culture substrates with slow-release fertilizers and propagation substrates for vegetable and decorative plants must be used within a few days.
10.4. The culture substrates and soil additives are not sterile but rather naturally microbially activated. Micro-organisms may be autochthonous or colonize substrates during storage or plant cultivation depending on the time of year and the culture conditions. The large majority of products contain high levels of organic matter, which is inevitably subject to microbial decomposition by fungi, bacteria and other organisms. Saprophytic nematodes may be present in the culture substrates and soil additives in small numbers. Manuring of the culture substrates for plant growth moreover promotes the growth of saprophytic organisms. The presence of saprophytic organisms and the consequences of such, e.g. appearance of fungi, therefore do not constitute product defects.
10.5. Colonization by ubiquitous micro-organisms and the ubiquitous appearance of saprophytic organisms therefore constitute a product defect at most if the products are anthropogenously contaminated with an unnaturally/atypically high quantity of saprophytic organisms or micro-organisms on transfer of risk.
11. Liability and Limits to Liability
11.1 By derogation from product quality claims in point 9, the general period of limitation for claims arising from material defects and defects of title is 3 (three) months.
This does not apply for claims:
a) In the case of liability due to intent.
b) For damage to life, body or health that are due to negligent breach of duty by the user or to deliberate or negligent breach of duty by a legal representative or agent of the user and for other damages due to grossly negligent breach of duty by the legal representative or agent of the user.
c) If the seller has maliciously concealed the defect.
11.2. In the case of claims due to other contractual breaches of duty as a result of unauthorized action, the regular period of limitation is 3 (three) months. This does not apply in the cases specified in Article 11.1 letters a) and b).
11.3. Claims by the injured party under Latvian law and claims by the company in supplier recourse are not affected by the provisions according to Article 11.1 and 11.2.
11.4. The start and end of the periods of limitation are determined by the statutory requirements.
11.5. Hortimed is liable for damages – regardless of legal basis – only in cases of intent or gross negligence. In the case of ordinary negligence, we are liable for damages only:
a) For damage to life, body or health.
b) For damages due to the breach of a major contractual duty (so-called cardinal duty, the fulfilment of which makes the proper execution of the contract possible at all and upon the adherence to which the contracting partner regularly depends and may regularly depend); in this case, however, our liability is limited to compensation for the foreseeable damage typically occurring.
c) For claims for defects if maliciously concealed a defect or provided a guarantee for the quality of the Goods. Reference to standards in business transactions implies no guarantee of quality in accordance with Latvian law.
d) For claims by the Buyer as the injured party in accordance with product liability law. It is not determined thereby that product liability law is applicable between the contracting parties.
e) Hortimed shall in no event, regardless of cause, be liable for any indirect, special, punitive or consequential losses or damages, including, but not limited to loss of profit, loss of business, operating losses, and legal costs or fees, regardless whether such losses or damages are suffered by the Buyer or a third party.
f) In respect of all third-party claims, including, but not limited to property damage, death or personal injury, the Buyer shall, to the extent permitted by law, hold harmless and indemnify Hortimed fully against any and all claims, costs and fees exceeding the Hortimed’s relevant limits of liability expressed elsewhere herein.
g) Except when prior written approval from Hortimed has been obtained, the Buyer can under no circumstances make a direct claim against a subcontractor or sub supplier of Hortimed, regardless the basis on which such claim is based, including, but not limited to, product liability, negligence claims, warranty, tort or professional liability.
h) Nothing in this Article shall be construed as excluding any admissibility of claims based on mandatory law provisions.
12. Liability for Quality of the Goods
12.1. The Buyer is solely responsible for the Goods conforming to the specific purpose of the Buyer, and Hortimed assumes no liability in any event for the Goods not conforming to the Buyer’s intentions or not being fit for any purpose of the Buyer, regardless whether the Buyer has disclosed such intentions or proposed purpose with the Goods to Hortimed.
12.2. Adding ingredients or components to the Goods may amend the characteristics of the Goods and cause loss or damage. Therefore, Hortimed accepts no liability for any admixture of the Goods. This waiver of liability applies if the Buyer, or anyone acting on the Buyer’s behalf or under the Buyer’s instructions, prior to use of the Goods, adds or mixes any ingredients or components, such as e.g. peat, clay, composted waste, etc. with the Goods. The waiver of liability also applies if Hortimed has made the admixtures to the Goods following instructions from the Buyer.
13. Liability for Late Delivery
13.1. Time for delivery will be estimated as accurately as possible but is not guaranteed.
13.2. In case of delayed delivery, the Buyer must send a written notice to Hortimed.
13.3. In case of delayed delivery, the Buyer is entitled to serve notice requesting delivery within a reasonable time that must be accepted in writing by Hortimed.
13.4. In case of significant delay following a notice under Article 11.3, the Buyer may declare the delayed Order avoided. However, in case of subsequent deliveries by Hortimed, the Buyer will only be entitled to declare the delayed partial delivery avoided for the exact amount of order that was delayed. The deliveries are interrelated.
13.5. Buyer is only entitled to compensation if Buyer – subject to Article 11.4 – declares Order avoided. The compensation is calculated as amount equal to the additional costs incurred by the Buyer following a purchase of similar Goods from other manufacturers. The compensation shall never exceed the contract price of the particular delivery of the Goods. Buyer cannot claim anything else from Hortimed.
13.6. Except for the above Article 13.5, Hortimed accepts no liability for late delivery, including liability for loss, damage or consequential loss, whether direct or indirect.
13.7. In order to avoid any doubts, the delivery explicitly means the moment when the Goods are given to transport/logistics company.
14. Title Retention to the Goods
14.1. Hortimed retains title to the Goods the Buyer purchases from Hortimed in the course of his commercial activities until all claims against the Buyer under the business relationship, including any future claims under contracts signed simultaneously or later, have been settled by the Buyer. This shall also apply if individual claims for payment or all of Hortimed’s claims for payment have been included in a current account and the balance has been struck and accepted.
14.2. In the case of default of payment (with respect to payment of the purchase price or due bills of exchange) or in the case of other violations of duty for which the Buyer is responsible, Hortimed is entitled to take back the Goods and the Buyer is obligated to surrender them after having been warned unsuccessfully. Hortimed retains any and all pre-payments in case of default on payments by the Buyer.
14.3. Taking back the delivered Goods shall only constitute a withdrawal from the contract upon Hortimed’s express written declaration to that effect.
14.4. The Buyer shall be entitled to resell the Goods in the ordinary course of business, provided that all claims arising from the resale are assigned to Hortimed as follows:
a) The Buyer hereby assigns all future claims, including all ancillary rights, accruing to him against customers or third parties through resale or other legal grounds, no matter whether the reserved Goods are resold unprocessed or after processing. The Buyer is authorized to collect such claims even after assignment. This shall not prejudice Hortimed’s right to assert and/or collect the claims themselves, but Hortimed undertakes not to collect such claims themselves as long as the Buyer duly meets his payment obligations.
b) Hortimed may demand that the Buyer inform them of the assigned claims and the parties by whom they are owed, provide them with all particulars necessary for collection, furnish the corresponding documents to them and notify the owing parties of the assignment. If the reserved Goods are resold in combination with other Goods not belonging to Hortimed, then the Buyer’s claims against the customer shall be deemed assigned to Hortimed in the amount of the delivery price agreed between the Buyer and Hortimed.
c) Any treatment, processing and mixing of reserved Goods shall be done on behalf of Hortimed as manufacturer without giving rise to any obligations on the part of Hortimed. The processed Goods shall be considered reserved Goods under these conditions. If the reserved Goods are processed or inseparably mixed with other Goods not belonging to Hortimed, then Hortimed acquires co-title to the new item in the same proportion as that between the value of the reserved Goods and the other Goods involved at the time of processing or mixing. The co-title thus generated shall be considered reserved Goods under these conditions.
d) Hortimed undertakes to release the securities, to which they are entitled, to the extent that their value is exceeded by more than 20% of the claims to be secured, provided these have not been settled yet.
e) The Buyer shall only be entitled or authorized to resell or use the reserved Goods provided that the claims are actually assigned to Hortimed in accordance with the above provisions.
f) The Buyer shall not be entitled to dispose of the reserved Goods in any other way than by using or reselling them in the ordinary course of business; he shall in particular not be entitled to pledge them or transfer ownership by way of security.
g) The Buyer shall notify Hortimed immediately of any enforcement proceedings or other interventions of third parties concerning the reserved Goods or assigned claims and hand over all documents necessary for objection (in particular returns of execution or attachment orders and transfers of garnished claims). At the same time, the Buyer shall enclose an affidavit with his notification regarding the identity of the attached items.
h) Upon stoppage of payment or filing and institution of insolvency proceedings, the right to resell and use the reserved Goods, as well as the direct debit mandate for assigned claims, shall expire; the direct debit mandate shall also expire in the event of a protest of a cheque or bill of exchange.
i) Title to the reserved Goods and the assigned claims shall pass to the Buyer upon settlement of all claims of Hortimed arising from the business relationship.
15. Force majeure
15.1. Force majeure and any circumstances making the production or delivery of sold Goods impossible or impediments.
15.2. Circumstances that can only be eliminated with unreasonable effort, such as force majeure, pandemics/epidemics, war, riots, strikes, lock-outs, measures by authorities or statutory measures beyond the control of Hortimed, breakdown of machinery and other business disruptions, even if due to the weather or traffic, whether originating with the person of Hortimed or with the contracting plant and other suppliers, shall release Hortimed from the duty to deliver for the duration of the impediments or their after-effects without giving rise to any obligation to subsequent performance on the part of Hortimed.
15.3. Hortimed and Buyer shall not be held liable for failure to perform its obligations hereunder, either partially or in full, if such failure to perform is caused by force-majeure circumstances. The force-majeure circumstances shall be understood as circumstances which occurred after the date of Commercial Documents as a consequence of events of insuperable force as embargo, boycott, hurricane, earthquake, lightning or other acts of God or circumstances beyond either Party’s reasonable control affecting its operation and fulfillment of the Commercial Documents.
15.4. Should any Party fail to perform its obligations hereunder, either partially or in full, due to force-majeure circumstances, the Party in default shall immediately notify the other Party in writing and in any case within 10 (ten) days after commencement of such circumstances. This notice shall state the nature of the circumstances occurred, and, as far as possible, assessment of their impact on the Party’s capability to fulfill its obligations and period of delay in the fulfillment of contractual obligations and suggests resuming fulfillment of obligations.
15.5. In the event the one party failed to send such notice or failed to send it in due time, this Party shall be held liable for damage caused by such failure to notify the other Party or failure to notify in due time.
15.6. If, in these cases, delivery in full or part has not taken place within 2 months after conclusion of the contract or requisition, both the Buyer and Hortimed shall be entitled to withdraw from that part of the contract related to the Goods affected by the impediment or disruption. A declaration to that effect must be received by the other contracting party within a further two weeks. All payment obligations for fulfilled services and deliveries must be made by the Buyer.
15.7. The force-majeure circumstances only for Hortimed shall also include any direct or indirect circumstances arising from Covid-19 epidemic within the territory of Hortimed. For example, but not limited to, state of emergency, lockdown or stay at home orders.
16. Overall Limitation of Liability
16.1. Save as otherwise stated, in these Terms and Conditions, Hortimed shall in no event, regardless of cause, be liable for any indirect, special, punitive or consequential losses or damages, including but not limited to loss of profit, loss of business, operating losses, and legal costs, regardless whether such losses or damages are suffered by the Buyer or a third party. For the avoidance of doubt this limitation of liability shall apply regardless the basis on which such losses or damages are based, including but not limited to delay, defects, product liability, professional liability, contract, warranty and tort.
17. Governing Law
17.1. These Terms and Conditions and the entire legal relationship between Hortimed and the Buyer are subject to the laws of the Republic of Latvia to the exclusion of the UN Convention on Contracts for the International Sale of Goods. The English version of these Terms and Conditions shall be decisive.
17.2 Should one of the provisions of these Terms and Conditions be or become invalid, this shall not affect the validity of all other provisions.
17.3. The registered place of business of Hortimed shall be exclusive place of jurisdiction for all disputes directly or indirectly arising from this contractual relationship.
17.4. Any dispute, controversy or claim arising out of or relating to this Agreement, or the breach, termination or invalidity thereof, shall be irrevocably settled in the Latvian Chamber of Commerce and Industry Court of Arbitration (“Latvijas Tirdzniecības un rūpniecības kameras (LTRK) Šķīrējtiesa”) in Riga in accordance with its Rules of Arbitration. The number of arbitrators shall be one. The languages of the arbitration shall be Latvian or English.