GENERAL TERMS AND CONDITIONS (GTC)

SECTION I: GENERAL PROVISIONS
§ 1 Scope of Application, Consumers and Entrepreneurs
  1. These General Terms and Conditions apply to all contracts with Kern-Timber Export GmbH as well as to its deliveries and other services. We do not accept any deviating terms and conditions of the customer unless we have expressly agreed to their validity in writing.

  2. The provisions of Section II shall apply to consumers and those of Section III shall apply to entrepreneurs. The provisions of this Section I apply to both consumers and entrepreneurs.

  3. A consumer is any natural person who concludes a legal transaction for purposes which can predominantly neither be attributed to his commercial nor his self-employed professional activity (§ 13 BGB); in contrast, anyone who acts as a natural or legal person or as a partnership with legal capacity when concluding the legal transaction in the exercise of the commercial or self-employed professional activity is an entrepreneur (§ 14 BGB).​

 

§ 2 Conclusion of contract
  1. In our shops we offer our customers various wood trade products with the main focus on interior and exterior finishing products, wooden floors, doors and accessories for sale. These are on the one hand finished products, on the other hand custom-made products. Entrepreneurs can also purchase these products via the Internet. The presentation and advertising of articles in our shops and online shop does not constitute a binding offer to conclude a sales contract.

  2. When shopping in the online shop, the customer can correct all entries continuously using the usual keyboard and mouse functions before submitting a binding order. In addition, all entries are displayed again in a confirmation window before the order is placed and can also be corrected there using the usual keyboard and mouse functions. The receipt and acceptance of the order will be confirmed to the customer by e-mail. This confirmation of receipt does not constitute an order confirmation in the sense of paragraph (2).

  3. Our offers are subject to confirmation; a contract is only concluded by acceptance of the customer's order by way of order confirmation in text form (§ 126b BGB) or if orders have been executed by us.

  4. Amendments, supplements and/or the cancellation of a contract or these conditions require text form.

 

§ 3 Data protection
  1. As far as necessary for the fulfillment of a contract, we are authorized to store and process the data of the customer according to Art. 6 Para. 1 S. 1 lit. b DS-GVO by EDP.

  2. The following links apply to visits to our Internet pages: https://www.kern-timber.de/privacy-policy and legal notes, the validity of which is hereby expressly pointed out.

 

§ 4 Miscellaneous
  1. In the event of the additional commissioning of assembly services, we shall be entitled to use subcontractors.

  2. If the customer is a businessman, the place of jurisdiction shall be the registered office of Kern-Timber Export GmbH; if we take legal action, the general place of jurisdiction of the customer shall also apply.

  3. All legal relations between the customer and us shall be governed by the laws of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods. For consumers, mandatory provisions of the law of the state in which the customer has his habitual residence shall remain unaffected if the customer has performed the legal acts required to conclude the purchase contract in the state of his habitual residence.

  4. You can download our General Terms and Conditions here as a PDF file.

SECTION II: FOR CONSUMERS
§ 5 Delivery
  1. Unless otherwise agreed, delivery shall be made from our warehouse to the delivery address specified by the customer. Information about the delivery period is non-binding, unless the delivery date has been confirmed as binding in exceptional cases.

  2. If, through no fault of our own, we are unable to deliver the ordered goods because our supplier does not fulfil his contractual obligations, the customer shall be informed immediately that the ordered product is not available and we shall endeavour to find an alternative. If a contract has already been concluded, the customer's statutory claims shall remain unaffected.

  3. Partial deliveries and services are permissible unless this is exceptionally unreasonable for the customer. The customer shall not be invoiced for any additional costs arising from partial deliveries.

  4. If goods with obvious damage to the packaging or the contents are delivered, the customer shall, without prejudice to his warranty rights, complain this immediately to the forwarder/freight service and contact us immediately so that he can protect any rights of his own vis-à-vis the forwarder/freight service.

 

§ 6 Prices, payment, set-off, retention
  1. All prices include the legal sales tax. The prices do not include shipping and packaging costs, which are announced to the customer before the order is placed.

  2. We reserve the right to adjust prices accordingly in the event of changes in exchange rates, customs duties, taxes, freight and insurance costs, acquisition costs (e.g. for components and services) with effect for future transactions.

  3. Unless otherwise agreed (e.g. within 30 days of invoice date), payments shall be made in advance.

  4. The customer is only entitled to a right of set-off if his counterclaims have been legally established or are undisputed by us. Furthermore, the customer shall only be entitled to exercise a right of retention to the extent that his counterclaim is based on the same contractual relationship.

 
§ 7 Retention of title

The delivered goods remain our property until full payment has been made.

 

§ 8 Warranty claims
  1. If defects are present, the customer shall be entitled to the statutory warranty rights in accordance with the following provisions.

  2. Damages caused by improper actions of the customer during installation, connection, operation or storage of the goods do not constitute a warranty claim against the seller.

  3. The customer must notify the seller of any defects within a warranty period of two years for new items or one year for used items. The above periods shall not apply to defects in a building or an object which has been used for a building in accordance with its customary use and which has caused the building's defectiveness. The above periods shall also not apply if the Seller has fraudulently concealed a defect or has assumed a guarantee for the quality of the goods, and not for claims for damages by the Customer which are directed towards compensation for bodily injury or damage to health due to a defect for which the Seller is responsible or which are based on intentional or grossly negligent fault on the part of the Seller or its vicarious agents.

  4. If there are defects and these were asserted in good time, we shall be entitled to supplementary performance or rectification of defects. If the subsequent performance or rectification fails, the customer shall be entitled to reduce the purchase price or withdraw from the contract. In all other respects, the statutory provisions shall apply, in particular also with regard to any necessary expenses for the removal of the defective item and the installation or attachment of the repaired or delivered defect-free item.

 

§ 9 Limitation of liability
  1. Outside the liability for material defects and defects of title, we shall be liable without limitation if the cause of the damage is based on intent or gross negligence. We shall also be liable for the slightly negligent breach of essential obligations (obligations whose breach jeopardizes the achievement of the purpose of the contract) as well as for the breach of cardinal obligations (obligations whose fulfillment makes the proper execution of the contract possible in the first place and on whose fulfillment the customer regularly relies), but in each case only for the foreseeable damage typical of the contract. We shall not be liable for the slightly negligent breach of obligations other than the foregoing.

  2. The liability limitations of the preceding paragraph shall not apply in the case of injury to life, limb and health, for a defect after assumption of a guarantee for the quality of the product and in the case of fraudulently concealed defects. Liability under the Product Liability Act remains unaffected.

  3. If our liability is excluded or limited, this shall also apply to the personal liability of our employees, representatives and vicarious agents.

 

§ 10 Right of revocation
  1. As a consumer, you are entitled to a right of withdrawal in distance selling transactions in accordance with the statutory provisions. Such a right does not exist according to the law with goods, which were made after customer specification or which are cut clearly to the personal needs of the customer.

  2. If you as a consumer make use of your right of revocation according to item 1, you have to bear the regular costs of the return.

  3. For the rest, the regulations which are reproduced in detail in the following shall apply to the right of revocation.

 

Revocation instruction 
Right of withdrawal 
You have the right to revoke this contract within fourteen days without giving reasons.
The withdrawal period shall be fourteen days from the date on which you or a third party other than the carrier who has taken possession of the goods, designated by you, have taken possession of them.
In order to exercise your right of revocation, you must provide us
 
Kern-Timber Export GmbH
Minneweg 29
21720 Grünendeich
Phone: 04141 806 88 88
Fax: 04141 806 88 89
E-mail: info@kern-timber.de
with a unique declaration (e.g. a letter, fax or e-mail sent by post) of your decision to revoke this Agreement. You can use the attached sample revocation form, which is not mandatory. You may also complete and submit the model withdrawal form or other clear statement electronically. If you make use of this option, we will immediately (e.g. by e-mail) send you confirmation of receipt of such a revocation. 
In order to comply with the revocation period, it is sufficient that you send the notification of the exercise of the right of revocation before the expiry of the revocation period.

Consequences of the revocation 
If you revoke this Agreement, we shall reimburse you immediately and no later than fourteen days from the date on which we received notice of your revocation of this Agreement for all payments we have received from you, including delivery charges (other than additional charges arising from your choice of a method of delivery other than the cheapest standard delivery offered by us). We will use the same means of payment used by you in the original transaction for such refund, unless expressly agreed otherwise with you and in no event will you be charged for such refund. We may refuse to refund until we have received the Goods back or until you have provided evidence that you have returned the Goods, whichever is earlier. 
You must return or hand over the goods to us immediately and in any event within fourteen days of the day on which you notify us of the revocation of this contract at the latest. This period shall be deemed to have been observed if you dispatch the goods before the expiry of the period of fourteen days.
 
You shall bear the direct costs of returning the goods. 
They shall be liable for any depreciation of the goods only if such depreciation is due to handling of the goods which is not necessary to examine their nature, properties and functionality. 

- End of the revocation instruction -

SECTION III: FOR ENTREPRENEURS
§ 11 Applicability of HGB regulations, trading clauses
  1. we point out to merchants the validity of the provisions of the Fourth Book of the German Commercial Code (HGB). The analogous application of these regulations is hereby agreed for other entrepreneurs who are not merchants.

  2. Insofar as trade clauses are agreed in accordance with the International Commercial Terms (INCOTERMS), the INCOTERMS 2010 7th Revision shall apply.

§ 12 Transfer of Risk, Mode of Shipment, Delivery Dates
  1. Unless otherwise agreed, we shall deliver and perform EXW (ex works) at our place of business; in doing so, we shall determine the type of shipment, shipping route and carrier.

  2. Partial deliveries or services are permissible, provided that they are not unreasonable for the customer. The customer shall not be invoiced for any additional costs arising from partial deliveries.

  3. The beginning of the delivery or service time stated by us requires the clarification of all technical questions as well as the timely and proper fulfilment of the customer's obligations.

  4. If an agreed delivery or service date is exceeded for reasons for which we are responsible, the customer shall set us a reasonable grace period for delivery or service in writing. This period of grace shall be at least three weeks. If the delivery or service does not take place after expiry of the grace period and the customer therefore wishes to withdraw from the contract or demand damages instead of performance, he shall be obliged to notify us of this expressly in writing beforehand, setting a reasonable further grace period and requesting delivery or performance. At our request, the customer shall be obliged to declare within a reasonable period of time whether he will withdraw from the contract due to the delay in delivery or performance and/or demand damages instead of performance or insist on delivery or performance.

§ 13 Force Majeure

In the event of force majeure, our delivery or performance obligations shall be suspended; if a material change occurs in the circumstances existing at the time the contract was concluded, we shall be entitled to withdraw from the contract. All circumstances for which we are not responsible and which make delivery or performance substantially more difficult or impossible for us shall be deemed equivalent to force majeure, regardless of whether these circumstances occur with us or with a supplier or vicarious agent.

 

§ 14 Prices, payment, set-off, retention
  1. Our prices are EXW (ex works) our place of business. Unless otherwise agreed, our prices do not include the costs of packaging, insurance, freight and value-added tax.

  2. If the delivery or service date is later than four months after conclusion of the contract, a price adjustment to changed price bases (e.g. raw materials, wages) is permissible. We will then charge the prices valid on the day of delivery or performance. In the case of deliveries or services within four months, the price valid on the day of conclusion of the contract shall apply in any case.

  3. Unless otherwise agreed, the customer shall pay the agreed remuneration to us without deductions 14 days after delivery of the goods or performance of the service. After expiry of this period, the customer shall be in default in accordance with § 286 Para. 2 No. 2 BGB.

  4. We can demand partial payments or advance payment if the customer orders from us for the first time, if the customer is domiciled abroad or if the delivery is to be made abroad or if there are reasons to doubt timely or complete payment by the customer. If one of the above conditions occurs after conclusion of the contract, we shall be entitled to revoke agreed payment terms and to make payments due immediately.

  5. The customer may only set off counterclaims which are undisputed or have been legally established. The customer shall only be entitled to rights of retention insofar as they are based on the same legal transaction.

 

§ 15 Retention of title
  1. Goods sold shall remain our property until all claims arising from the business relationship have been settled.

  2. If the goods are treated or processed by the customer, our retention of title shall extend to the entire new item. If the customer processes, combines or mixes the goods with other goods, we shall acquire co-ownership of the fraction corresponding to the ratio of the invoice value of our goods to that of the other goods used by the customer at the time of processing, combining or mixing.

  3. If the reserved goods are combined or mixed with a main item of the customer or a third party, the customer hereby assigns to us his rights to the new item. If the customer combines or mixes the reserved goods against payment with a main item of a third party, he hereby assigns to us his claims for remuneration against the third party.

  4. The customer shall be entitled to resell the goods subject to retention of title within the framework of an orderly business operation. If the customer sells these goods on his part without receiving the full purchase price in advance or concurrently with delivery of the purchased item, he must agree a retention of title with his customer in accordance with these conditions. The customer already now assigns to us his claims from this resale as well as the rights from the retention of title agreed by him. At our request, he shall be obliged to inform the purchasers of the assignment and to provide us with the information and documents required to assert our rights against the purchasers. The customer shall only be entitled to collect the claims arising from the resale despite the assignment as long as he duly fulfils his obligations towards us.

  5. If the value of the securities provided to us exceeds our claims by more than 20 percent in total, we shall be obliged to release securities of our choice at the customer's request.

 

§ 16 Rights of the customer in case of defects
  1. The products delivered by us comply with the applicable German regulations and standards. We do not assume any liability for the compliance with other national regulations. If the products are used abroad, the customer undertakes to check the conformity of the products with the relevant legal systems and standards himself and, if necessary, to make adjustments.

  2. The customer cannot assert any rights due to defects in our delivery and service if the value or suitability of the delivery and service is only insignificantly reduced.

  3. If the delivery or service is defective and the customer complained about this in writing in good time in accordance with § 377 HGB (German Commercial Code), we shall, at our discretion, either make a subsequent delivery or remedy the defect (subsequent performance). The customer shall grant us a reasonable period of at least 10 working days for this purpose.

  4. The customer may also demand compensation for the expenses necessary for the purpose of subsequent performance, provided that the expenses are not increased because the object of the delivery was subsequently taken to a place other than the original place of delivery, unless the transfer corresponds to its intended use. In all other respects, the provisions of § 439 para. 3 and para. 4 BGB (German Civil Code) shall apply with regard to any expenses for the dismantling and installation of the defective or repaired or replaced item.

  5. If the supplementary performance fails, the customer may reduce the remuneration or withdraw from the contract. Withdrawal from the contract is only permissible, however, if the customer has expressly threatened us with this in advance in writing with an appropriate additional period of grace.

  6. Recourse claims of the customer according to § 478 BGB exist against us only insofar as the customer has not entered into any agreements with his buyer which go beyond the statutory claims for defects.

 

§ 17 Liability for damages
  1. Unless otherwise stated below, claims of the customer - regardless of the legal grounds - are excluded. We shall therefore not be liable for damage which has not occurred to the delivery item itself; in particular, we shall not be liable for lost profits or other financial losses of the customer. Insofar as our contractual liability is excluded or limited, this shall also apply to the personal liability of employees, representatives and vicarious agents.

  2. The above limitation of liability shall not apply if the cause of the damage is based on intent or gross negligence or if personal injury has occurred.

  3. If we negligently violate an essential contractual obligation, the obligation to pay compensation for material damage shall be limited to the typically occurring damage. This is limited to EUR 50,000 per claim and EUR 100,000 from the contract as a whole.

  4. (In addition, we shall only be liable within the framework of our existing insurance coverage, as well as within the scope of our own insurance coverage.

  5. 5 In all other respects our liability for damages is excluded.

  6. The exclusion or limitation of liability shall not apply in the event of death, personal injury or damage to health, or in the event of damage to privately used property, where our liability is mandatory by law or for other reasons.

  7. The assignment of the claims of the customer regulated in §§ 17, 18 paragraph (1) to (3) is excluded.

 

§ 18 Acceptance

In the event of additional commissioning of assembly services, the following shall apply:

  1. If we demand acceptance of the work after completion - if necessary also before expiry of the agreed execution period - the customer must carry this out within 12 working days; another period may be agreed. Upon request, self-contained parts of the performance shall be specially accepted. Acceptance may only be refused on the grounds of material defects until remedied.

  2. If no acceptance is requested, the service shall be deemed accepted upon expiry of 12 working days following written notification of completion of the service. If no acceptance is requested and the customer has used the service or part of the service, acceptance shall be deemed to have taken place 6 working days after the start of use, unless otherwise agreed. The use of parts of a structural installation to continue the work shall not be deemed acceptance.

  3. The customer shall assert reservations due to known defects or contractual penalties at the latest by the dates specified in paragraphs 1 and 2.

  4. The risk shall pass to the customer upon acceptance, unless the customer already bears it pursuant to § 13 para. 1.

 

§ 19 Statute of Limitations
  1. The limitation period for claims due to defects in our deliveries and services and for claims due to our liability for damages shall be one year. This shall not apply insofar as longer periods are prescribed pursuant to §§ 438 para. 1 no. 2 (buildings and items for buildings), 479 para. 1 (right of recourse) and 634a para. 1 no. 2 BGB (construction defects) as well as in cases of injury to life, limb or health, in the event of an intentional or grossly negligent breach of duty on our part and in the event of claims for damages under the Product Liability Act.

  2. In the event of the additional commissioning of assembly services, the warranty period for the assembly services shall commence upon acceptance of the service. If several independently detachable assembly services are involved, the warranty period for these partial services begins with their acceptance.

Our General Terms and Conditions - Status 01.04.2019

The German version of the General Terms and Conditions is the binding version.

kern@kern-timber.de

Office 0049 4141 806 88 88

©2019–2020 by KTE.