General Terms and Conditions(GTC)
General Terms and Conditions of Delivery and Payment for the Timber Trade
To be used in business transactions with non-consumers
1. SCOPE OF APPLICATION
1.1 Unless otherwise expressly agreed, the following General Terms and Conditions of Delivery and Payment (GTC) apply to all contracts, deliveries, and other services – including consultancy services rendered in this connection that are not subject to a separate consultancy contract – in business transactions with non-consumers in the sense of § 310, I BGB (German Civil Code) and in addition to the “Tegernseer Gebräuche” (Timber Trade Customs and Usages).
1.2 Deviating conditions, in particular General Purchasing Conditions of the Buyer are herewith opposed.
1.3 In an ongoing business relationship between merchants, our GTC are also a component part of the contract notwithstanding the absence of any express reference to them made by the Seller.
2. OFFERS AND CONCLUSION OF CONTRACTS
2.1 All offers specified in the Seller’s catalogues and sales documents and – unless expressly indicated as binding – on the Internet are always subject to change and solely to be understood as a request to submit an offer.
2.2 Orders are not deemed to have been accepted until a written order acknowledgement has been issued by the Seller or until they have been carried out immediately upon order receipt or as per agreed schedule. In such cases, the invoice applies as the order acknowledgement.
2.3 If, after conclusion of the contract, the Seller becomes aware of any facts – especially delay of payment regarding prior deliveries - which according to his best commercial judgement suggest that the purchase price claims are endangered by the Buyer’s lack of ability to pay, the Seller is entitled to demand of the Buyer to choose whether he accepts matching payment with delivery or provides appropriate securities within a reasonable time limit. In the case of the Buyer’s refusing, the Seller is entitled to withdraw from the contract and invoices for partial deliveries that have already been carried out to be invoiced as immediately payable.
3. STORAGE OF DATA
The Buyer is hereby informed that all data received in the context of the business relationship will be treated in accordance with the provisions of German Data Protection Act.
4. DEVIVERY, RISK TRANSFER AND DELAY
4.1 Risk is transferred to the Buyer when the Seller has placed the merchandise at the Buyer’s disposal at the agreed place of delivery.
4.2 Partial deliveries are permitted to a reasonable extent.
4.3 Delivery periods are extended by a reasonable space of time – even within default - in case of Force Majeure or other unpredictable obstacles occurring after conclusion of the contract that are outside the Seller’s control (i.e. business interruption, strike, lockout or disturbances of traffic routes), as far as such obstacles have demonstrably significant influence on the delivery of the sold merchandise. This also applies, if these circumstances affect our suppliers and their subcontractors. The Seller informs the Buyer as soon as possible about beginning and end of such obstacles. The Buyer may demand of the Seller to declare whether he wants to withdraw from the contract or to deliver within an appropriate period. If the Seller does not immediately issue a statement, the Buyer is authorised to withdraw from the contract. In such cases, claims for damages are excluded. The preceding arrangements apply also for the Buyer, if the aforementioned obstacles occur to the Buyer.
4.4 In terms of punctual delivery, the Seller is only liable in case of actual fault on his part or on the part of one of his agents. He is not responsible for fault on part of his pre-suppliers since they are not his agents. However, the Seller is obliged to assign possible claims against his pre-supplier to the Buyer on demand.
4.5 In cases of delay in delivery, the Buyer is obliged to declare on demand of the Seller whether he continues to insist on delivery or withdraws from the contract due to delay and/or demands damages instead of accomplishment.
5.1 Unless otherwise stipulated, the purchase price is due immediately upon receipt of the merchandise without deduction.
5.2 Payment by bills of exchange is only acceptable after special agreement.
Bills of exchange and cheques are exclusively accepted as undertaking to pay, but not in lieu of payment. In case of cheque or bill protest, the Seller may demand immediate matching payment in cash upon return of the cheque or the bill of exchange.
5.3 In cases of delay in payment the legal regulations apply. Discounts that may have been stipulated will not be granted as long as the Buyer is in default of payment regarding prior deliveries.
5.4 If the Buyer defaults in payment or does not honour a bill of exchange at the due date, the Seller is entitled to take back the merchandise after prior reminder or to enter the Buyer’s company and remove the merchandise. The Seller may also forbid removal of the delivered merchandise.
5.5 The Buyer is not entitled to refuse or retain payment, if he was aware of the defect or other reasons for complaint when the contract was concluded. This applies also in case he remained unaware of it due to gross negligence; unless the Seller has intentionally concealed the defect or other reason for complaint or issued a warrantee for the condition of the goods.
Furthermore, the payment may only be retained to a reasonable amount due to defects or other complaint. In cases of dispute, an expert appointed by the Seller’s Chamber of Industry and Commerce will decide on the amount. He shall also decide on the distribution of the costs at his equitable discretion.
5.6 Set-off is only possible with claims that have been recognised by the Seller or legally established claims.
6. WOOD PROPERTIES
6.1 Wood is a natural product, therefore, its natural properties, variations and characteristics are always to be considered. When purchasing or utilising it, the Buyer must give special attention to its biological, physical and chemical properties.
6.2 The scope of natural differences in colour, structure or other variations within one type of wood are part of its properties as a natural product and constitute no reason for claim or liability.
6.3 The Buyer must take professional advice if necessary.
7. COMPLAINT, WARRANTEE AND LIABILITY
7.1 The Seller is only liable for defects in the sense of § 434 BGB (German Civil Code) as follows:
The Buyer is obliged to examine the quantity and quality of the delivered merchandise immediately upon receipt. Obvious defects must be notified to the Seller in writing within 14 days. In reciprocal trading transactions between merchants, the §§ 377, 378 HGB (German Commercial Code) remain unaffected. Furthermore we refer to the „Tegernseer Gebräuche“.
7.2 If the Buyer finds defects on the merchandise, he is not entitled to dispose of it. Which means the merchandise may not be divided, resold or processed until an arrangement on the handling of the complaint has been reached or proceedings for the preservation of evidence have been made by an expert commissioned by the Chamber of Industry and Commerce at the Buyer’s registered office.
7.3 In case of justified complaints, the Buyer is entitled to determine the form of supplementary performance (replacement, rectification) considering the kind of defect and the justified interests of the Seller.
7.4 Should a case of warrantee occur with a consumer, this must be notified without undue delay by the Buyer.
7.5 Claims based on material defects become statute-barred in 12 months. This does not apply as far as law prescribes longer periods according to BGB § 438, 1 No. 2 (buildings and things for buildings), § 479, 1 (recourse claims) and § 634a, 1 No. 2 (defect of work).
7.6 To claims for damages applies paragraph 8 (General Limitation of Liability)
8. GENERAL LIMITATION OF LIABILITY
8.1 Claims for damages or reimbursement of expenses (hereafter: compensation claims) of the Buyer, regardless of which legal reason and especially due to infringement of liabilities from an obligation and tortuous acts, are excluded.
This does not apply, when a warrantee or a risk of procurement is assumed. Furthermore this does not apply, as far as there is a mandatory liability, e.g. according to the Product Liability Act, in cases of gross negligence, injury to life, body or health, as well as infringement of fundamental contractual obligations. However, compensation claims for the infringement of fundamental contractual obligations are limited to contract-typical, foreseeable damages, insofar as gross negligence is not perpetrated or liability
prevails for injury to life, body or health. This does not constitute a reversal of the burden of proof to the disadvantage of the Buyer.
8.2 This provision applies accordingly to the Buyer.
9. RESERVATION OF TITLE
9.1 The Seller reserves the title to the merchandise until complete payment of the purchase price. To merchandises that the Buyer purchases from the Seller in the context of an ongoing business relationship, the Seller reserves the title until complete payment of any and all claims receivable from the Buyer due to this business relationship, including all future claims from contracts, even if they have been concluded at the same time or at a later date. This also applies, when a single or all claims of the Seller have been brought into a current account and the balance has been struck and accepted.
Where recourse is established for the Seller through payment of the purchase price by a bill of exchange, the reservation of title does not end until the bill is honoured by the Buyer as the payer. If the Buyer delays in payment, the Seller is entitled to take back the merchandise after prior reminder and the Buyer is obliged to deliver it.
9.2 If the reserved merchandise is processed into a new movable object by the Buyer, the processing occurs without any obligation for the Seller; the new object becomes the property of the Seller. In cases where the reserved merchandise is processed by combining it with goods not belonging to the Seller, the Seller acquires co-ownership in the new thing in proportion to the value of the reserved good to the value of the other good at the time of processing. If the reserved merchandise is combined, mixed or blended with goods not belonging to the Seller in compliance with §§ 947, 948 BGB, the Seller becomes co-owner according to the legal regulations. Should the Buyer acquire sole ownership by combining, mixing or blending, he transfers already now co-ownership to the Seller in proportion to the value of the reserved merchandise to the other good at the time of combination. In those cases, the object of which the Seller is owner or co-owner and that is also to be considered as reserved good in the sense of the preceding conditions, has to be stored by the Buyer without costs.
9.3 If the reserved merchandise is sold as it is or together with goods not belonging to the Seller, the Buyer relinquishes already now all claims and ancillary rights resulting from the resale up to the amount of the value of the reserved merchandise. The Seller accepts the relinquishment. The amount invoiced by the Seller is the value of the reserved merchandise. However, it will be disregarded in cases of conflict with third party rights. If the Seller is co-owner of the resold merchandise that is subject to reservation of title, the relinquished claims amount to the value of the Seller’s co-ownership share.
9.4 In the event the Buyer builds in the reserved merchandise as a component part into property, ship, ship structure or aircraft of a third party, the Buyer relinquishes already now all transferable claims for payment against the third party or whom it may concern, to the amount of the value of the reserved merchandise, including all ancillary rights and concession of mortgage. The Seller accepts the relinquishment. Clauses 2 and 3 of paragraph 9.3 apply accordingly.
9.5 The Buyer is solely entitled to resale or to build in the reserved merchandise, in the context of the common regular course of business and provided that the claims in the sense of paragraph 3 – 5 are effectively relinquished to the Seller. The Buyer is not entitled to any other disposal of the reserved merchandise, especially pledging or assignment as security.
9.6 The Seller authorises the Buyer under reserve of revocation to collect the claims relinquished according to paragraph 3 and 5. The Seller will not exercise his authority to collect, as long as the Buyer meets his payment obligations, including those vis-à-vis third parties. On demand of the Seller, the Buyer is to reveal the debtor of the relinquished claims and to inform them of the relinquishment; the Seller is also entitled to notify the relinquishment to the debtors himself.
9.7 The Buyer is to inform the Seller immediately about any execution measures of third parties against the reserved merchandise or the relinquished claims and to transfer all documents necessary for objection.
9.8 With cessation of payment and/or request for institution of insolvency proceedings, the right to resale, utilise or build in the reserved merchandise or the authorisation to collect the relinquished claims expire; the authorisation to collect expires also in case of cheque or bill protest. This does not apply to the rights of the liquidator.
9.9 If the value of the granted securities exceeds the claims (if applicable, less advance and partial payments) by more than 20%, the Seller is obliged to optional retransfer or release them to that extend. With satisfaction of all claims of the Seller resulting from the business relationship, the ownership of the reserved merchandise and the relinquished claims are transferred to the Buyer.
10. CONSTRUCTION WORKS
For all construction works, including assembly, apply the German Construction Contract Procedures (VOB, sections B and C) in the version valid when the contract is concluded, insofar as the order is placed by a contracting party of the building industry.
11. PLACE OF JURISDICTION AND APPLICABLE LAW
11.1 As far as the Buyer is a merchant, a legal person or a special fund under public law, the Seller’s headquarters is place of fulfilment and legal venue for all deliveries and payments (including actions on a cheque or a bill of exchange) and for all disputes arising between the parties. However, the Buyer is entitled to sue the Seller at his own registered office.
11.2 The relationships between the two contractual parties are solely governed by the law of the Federal Republic of Germany, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).