GENERAL TERMS AND CONDITIONS OF DELIVERY AND PAYMENT (T&C)

FOR EXCLUSIVE USE IN ENTREPRENEURIAL BUSINESS TRANSACTIONS
1. APPLICABILITY

 

1.1 Unless expressly agreed otherwise, the following "General Terms and Conditions of Delivery and Payment" (T&C) shall apply to all contracts, deliveries and other services in business transactions with entrepreneurs within the meaning of § 14 BGB (German Civil Code), legal entities under public law or special funds under public law (collectively referred to as "Customers") - in addition to the customs in the timber industry (Tegernsee customs).

1.2 Our T&C shall apply exclusively. Deviating, conflicting or supplementary General Terms and Conditions of the Buyer shall only become part of the contract if and to the extent that we have expressly agreed to their validity. This requirement of consent shall apply in any case, for example even if we unconditionally render performance to the Buyer in full knowledge of the Buyer's General Terms and Conditions.

1.3 Within the framework of an ongoing business relationship between merchants, the T&C shall also become part of the contract if the seller has not expressly referred to their inclusion in the individual case.

1.4 Individual agreements made with the Buyer in individual cases (including collateral agreements, supplements and amendments) shall in any case take precedence over these T&C. Subject to proof to the contrary, the content of such agreements shall be governed by a written contract or our written confirmation.

1.5 Legally relevant declarations and notifications to be made to us by the purchaser after conclusion of the contract (e.g. setting of deadlines, notifications of defects, declaration of withdrawal or reduction) must be in text form in order to be effective.

 

2. OFFERS AND CONCLUSION OF CONTRACT

 

2.1 The offers contained in the Seller's catalogues and sales documents and - unless expressly designated as binding - on the Internet are always non-binding and subject to change without notice, i.e. are to be understood only as an invitation to submit an offer.

2.2 Orders shall be deemed to have been accepted if they are either confirmed by the Seller or executed immediately after receipt of the order.

2.3 If, after conclusion of the contract, the Seller becomes aware of facts, in particular default in payment with regard to earlier deliveries, which, according to due commercial judgement, indicate that the purchase price claim is endangered due to the Buyer's lack of ability to pay, the Seller shall be entitled, after setting a reasonable deadline, to demand payment by instalments or corresponding securities from the Buyer at the Buyer's option and, in the event of refusal, to withdraw from the contract, whereby the invoices for partial deliveries already made shall become due immediately.

 

3. DELIVERY, TRANSFER OF RISK AND DELAY

 

3.1 We reserve the right to correct and punctual self-delivery.

3.2 The risk of accidental loss and accidental deterioration of the goods shall pass to the purchaser at the latest upon handover. In the case of sale by delivery to destination, however, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay shall pass to the buyer upon delivery of the goods to the forwarding agent, the carrier or any other person or institution designated to carry out the shipment.

3.3 Partial deliveries are permissible to a reasonable extent.

3.4 The delivery period shall be agreed individually or specified by us upon acceptance of the order. If this is not the case, the delivery period shall be approx. three (3) weeks from conclusion of the contract.

3.5 If we are unable to comply with binding delivery periods for reasons for which we are not responsible (non-availability of performance), we shall inform the Buyer thereof without delay and at the same time inform the Buyer of the expected new delivery period. If the performance is also not available within the new delivery period, we shall be entitled to withdraw from the contract in whole or in part; we shall immediately reimburse any consideration already rendered by the purchaser. The case of non-availability of the service in this sense shall include in particular the failure of our suppliers to deliver to us on time, neither we nor our suppliers are at fault or we are not obliged to procure in individual cases.

3.6 In the event of a delay in delivery, the Buyer shall be obliged, at the Seller's request, to declare within a reasonable period of time whether he still insists on delivery or withdraws from the contract due to the delay and/or claims damages instead of performance.

3.7 If we are in default of delivery, the buyer may demand lump-sum compensation for the damage caused by the delay. For each completed calendar week of delay, the lump-sum compensation shall amount to 0.5% of the net price (delivery value), but not more than a total of 5% of the delivery value of the goods delivered late. We reserve the right to prove that the buyer has suffered no damage at all or only a significantly lower damage than the aforementioned lump sum.

3.8 The Buyer's rights under Clause 7 of these T&C and our statutory rights, in particular in the event of exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or subsequent performance), shall remain unaffected.

 

4. PRICES AND TERMS OF PAYMENT

 

4.1 Unless otherwise agreed, our current prices at the time the contract is concluded shall apply, ex warehouse (plus statutory value-added tax) and the purchase price shall be due immediately without deduction upon receipt of the goods.

4.2 If the buyer and seller participate in a company direct debit procedure, it is sufficient if the buyer receives the advance information (prenotification) on the direct debit amount and due date one day before the due date.

4.3 We are entitled at any time, even within the framework of an ongoing business relationship, to make a delivery in whole or in part only against advance payment. We declare a corresponding reservation at the latest with the order confirmation.

4.4 In the event of default in payment, interest shall be charged at the respective bank rates for overdraft facilities, but at least the statutory default interest. Possibly agreed discounts will not be granted if the buyer is in default of payment for earlier deliveries. Discount periods begin to run from the invoice date.

4.5 If the buyer is in default of payment due to a reminder (§ 286 para. 1 BGB) or if he does not honour a bill of exchange on maturity, the seller is entitled, after prior reminder, to take back or demand the return of the goods. The seller may also prohibit the removal of the delivered goods. The repossession shall be deemed as withdrawal from the contract.

4.6 A refusal or retention of payment is excluded if the buyer was aware of the defect or other reason for complaint when the contract was concluded. This shall also apply if he remained unknown to him as a result of gross negligence, unless the seller fraudulently concealed the defect or other reason for complaint or assumed a guarantee for the quality of the item.

Otherwise, payment may only be retained to a reasonable extent due to defects or other complaints. In the event of a dispute, an expert appointed by the Buyer's Chamber of Industry and Commerce shall decide on the amount. This expert shall also decide on the distribution of the costs of his involvement at his reasonable discretion.

4.7 A set-off or retention is only possible with undisputed or legally established claims.

4.8 If it becomes apparent after conclusion of the contract (e.g. by filing for insolvency proceedings) that our claim to the purchase price is endangered by the buyer's inability to pay, we shall be entitled, in accordance with the statutory provisions, to refuse performance and - if necessary after setting a deadline - to withdraw from the contract (§ 321 BGB). In the case of contracts for the manufacture of unjustifiable items (custom-made items), we may declare our withdrawal immediately; the statutory provisions on the dispensability of setting a deadline shall remain unaffected.

 

5. PROPERTIES OF THE WOOD

 

5.1 Wood is a natural product; its natural properties, deviations and characteristics must therefore always be observed. In particular, the purchaser must take into account its biological, physical and chemical properties when purchasing and using the wood.

5.2 The range of natural colour, structure and other differences within a type of wood is one of the characteristics of the natural product wood and does not constitute any cause for complaint or liability.

5.3 If necessary, the purchaser must seek professional advice.

 

6. NOTICE OF DEFECTS, WARRANTY AND LIABILITY

 

6.1 The properties of the goods, in particular quality, type and dimensions, shall be determined by the agreements between the parties. All product descriptions which are the subject of the individual contract shall be deemed an agreement on the quality of the goods; it makes no difference whether the product description originates from the purchaser, the manufacturer or from us. In the absence of such an agreement, the applicable relevant DIN and EN standards shall apply. Declarations of conformity and CE markings do not constitute independent guarantees. Risks of suitability and use lie with the purchaser.

6.2 The Seller shall only be liable for defects within the meaning of § 434 BGB as follows:
The buyer must immediately inspect the received goods for quantity and quality. Obvious defects must be reported to the seller in writing within 14 days. In the case of mutual commercial transactions between merchants, §§ 377, 381 HGB (German Commercial Code) shall remain unaffected. For the rest, reference is made to the Tegernseer customs.

6.3 If the buyer discovers defects in the goods, he may not dispose of them, i.e. they may not be divided, resold or further processed until an agreement has been reached on the handling of the complaint or an expert commissioned by the Chamber of Industry and Commerce at the buyer's place of business has carried out an evidence preservation procedure.

6.4 In the case of justified complaints, the seller is entitled to determine the type of subsequent performance (replacement delivery, rectification) taking into account the nature of the defect and the justified interests of the buyer. We shall be entitled to make the subsequent performance owed dependent on the Buyer paying the purchase price due. However, the Buyer shall be entitled to retain a reasonable part of the purchase price in proportion to the defect.

6.5 The Buyer shall inform the Seller as soon as possible of any warranty claim arising for a consumer.

6.6 The Buyer shall give us the time and opportunity necessary for the owed subsequent performance, in particular to hand over the rejected goods for inspection purposes. In the event of a replacement delivery, the purchaser must return the defective item to us in accordance with the statutory provisions.

6.7 Claims for material defects shall become statute-barred after 12 months. This shall not apply if longer periods are prescribed by law pursuant to §§ 438 para. 1 no. 2 (buildings and items for buildings), 479 para. 1 (right of recourse) and 634a para. 1 no. 2 (construction defects) BGB (German Civil Code).

6.8 The place of performance for subsequent performance shall be the Seller's place of business.

6.9 If, at the time the risk passes to the Buyer, the defective goods were concealed and, in accordance with their nature and intended use, installed in another object or attached to another object, the Seller shall bear the necessary expenses for removing the defective goods and installing or attaching the repaired or newly delivered object as well as the expenses for transport, travel, labour and material costs required for subsequent performance.

 

7. GENERAL LIMITATION OF LIABILITY

 

7.1 Unless otherwise stated in these T&C including the following provisions, we shall be liable in the event of a breach of contractual and non-contractual obligations in accordance with the statutory provisions.

7.2 We shall be liable for damages - for whatever legal reason - within the scope of liability for culpa in contrahendo in cases of intent and gross negligence. In the event of ordinary negligence, we shall be liable, subject to a milder standard of liability in accordance with statutory provisions (e.g. for care in our own affairs), only a) for damages arising from injury to life, limb or health and b) for damages arising from the not inconsiderable breach of a material contractual obligation (an obligation the fulfilment of which is essential to the proper performance of the contract and the observance of which the contractual partner regularly relies on and may rely on); in this case, however, our liability shall be limited to compensation for the foreseeable, typically occurring damage.

7.3 The limitations of liability resulting from Section 7.2 shall also apply in the event of breaches of duty by or for the benefit of persons whose fault we are responsible for in accordance with statutory provisions. They shall not apply if we have fraudulently concealed a defect or assumed a guarantee for the quality of the goods and for claims of the purchaser under the Product Liability Act.

7.4 Due to a breach of duty which does not consist in a defect, the purchaser may only withdraw or terminate the contract if we are responsible for the breach of duty. A free right of termination of the buyer (especially according to §§ 651, 649 BGB) is excluded. Otherwise, the statutory requirements and legal consequences shall apply.

 

8. JURRENICATION

 

8.1 Notwithstanding § 438 para. 1 no. 3 BGB, the general limitation period for claims arising from material defects and defects of title shall be one (1) year from delivery. If acceptance has been agreed, the limitation period shall commence upon acceptance.

8.2 If, however, the goods are a building or an object which has been used for a building in accordance with its usual use and which has caused its defectiveness (building material), the limitation period shall be five (5) years from delivery in accordance with the statutory regulation (§ 438 para. 1 no. 2 BGB). This shall also not affect any other special statutory provisions on limitation (in particular § 438 para. 1 no. 1, para. 3, §§ 444, 479 BGB).

8.3 The aforementioned limitation periods of the sales law also apply to contractual and non-contractual claims for damages of the buyer which are based on a defect of the goods, unless the application of the regular statutory limitation period (§§ 195, 199 BGB) would lead to a shorter limitation period in individual cases. Claims for damages on the part of the Buyer pursuant to Clause 7.2 Sentence 1 and Sentence 2 a) as well as pursuant to the Product Liability Act shall, however, become statute-barred in accordance with the statutory provisions.

 

9. RETENTION OF TITLE

 

9.1 The seller retains title to the goods until the purchase price has been paid in full.

9.2 If the reserved goods are processed by the Buyer into a new movable object, the processing shall be carried out for the Seller without the Seller being obliged to do so; the new object shall become the property of the Seller. In the event of processing together with goods not belonging to the Seller, the Seller shall acquire co-ownership of the new item in proportion to the value of the reserved goods to the other goods at the time of processing. If the reserved goods are combined, mixed or blended with goods not belonging to the Seller pursuant to §§ 947, 948 BGB, the Seller shall become co-owner in accordance with the statutory provisions. If the buyer acquires sole ownership through combination, mixing or blending, he hereby transfers co-ownership to the seller in proportion to the value of the reserved goods to the other goods at the time of combination, mixing or blending. In such cases, the Buyer shall store the goods owned or co-owned by the Seller, which shall also be regarded as reserved goods within the meaning of the above conditions, free of charge.

9.3 If reserved goods are sold alone or together with goods not belonging to the seller, the buyer hereby assigns the claims arising from the resale in the amount of the value of the reserved goods with all ancillary rights and priority over the rest; the seller accepts the assignment. The value of the goods subject to retention of title shall be the invoice amount of the Seller, which, however, shall not be taken into account if the rights of third parties conflict with it. If the resold reserved goods are co-owned by the Seller, the assignment of the claims shall extend to the amount corresponding to the Seller's share in the co-ownership.

9.4 If the reserved goods are built into an immovable object (a) of a third party or (b) of the buyer by the buyer as an essential component, the buyer already now assigns the assignable claims against (a) the third party or (b) the buyer in the event of the sale for remuneration in the amount of the value of the reserved goods with all ancillary rights including such rights to the granting of a right of lien in rem, with priority over the rest; the seller accepts the assignment. Clause 9.3, sentences 2 and 3 shall apply accordingly.

9.5 The Buyer is entitled and authorized to resell, use or install the reserved goods only in the ordinary course of business and only subject to the proviso that the claims within the meaning of Clause 9.3 or 9.4 are actually transferred to the Seller. The Buyer shall not be entitled to dispose of the reserved goods in any other way, in particular by pledging them or assigning them as security.

9.6 Subject to revocation, the Seller authorises the Buyer to collect the claims assigned pursuant to Clauses 9.3 and 9.4. The Seller shall not make use of its own authority to collect as long as the Buyer meets its payment obligations, also vis-à-vis third parties. At the Seller's request, the Buyer shall name the debtors of the assigned claims and notify them of the assignment; the Seller shall also be authorised to notify the debtors of the assignment itself.

9.7 The right to resell, use or install the reserved goods or the authorisation to collect the assigned claims shall lapse upon cessation of payments and/or filing for insolvency proceedings. This shall not apply to the rights of the insolvency administrator.

9.8 If the value of the securities granted exceeds the claims (if applicable reduced by down payments and partial payments) by more than 20%, the Seller shall be obliged to reassign or release the claims at his discretion.

 

10. FINAL PROVISIONS

 

10.1 The place of performance and jurisdiction for deliveries and payments (including actions on cheques and bills of exchange) as well as all disputes arising between the parties, insofar as the buyer is a merchant, a legal entity under public law or a special fund under public law, shall be the registered office of the seller. In all cases, however, we shall also be entitled to institute legal proceedings at the place of performance of the delivery obligation in accordance with these T&C or a prior individual agreement or at the buyer's general place of jurisdiction. Prior statutory provisions, in particular regarding exclusive responsibilities, shall remain unaffected.

10.2 The relations between the contracting parties shall be governed exclusively by the laws of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods.

10.3 The Buyer is hereby informed that the Seller collects, processes and uses the personal data obtained within the scope of the business relationship in accordance with the provisions of the Federal Data Protection Act for the purpose of conducting business.

10.4 Should a provision of these T&C be invalid (e.g. illegal or otherwise unenforceable), this invalidity shall not affect the validity of the remaining provisions. The invalid provision shall be replaced by a mutually agreed legally valid provision which has a similar and valid economic and legal effect. The same shall apply to any gaps or omissions in the T&C.

 

Status: April 1, 2019

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

kern@kern-timber.de

Office 0049 4141 806 88 88

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