General terms and conditions of business for the sawmill and wood industry (contracts, delivery and payment condition)
Sect. 1 General
- These terms and conditions of business are an integral part of all offers and contracts for deliveries and performances by the vendor in current and future business relations. At the latest with the acceptance of the goods or performance, these terms and conditions shall be deemed to have been accepted.
- They also apply to consultancy services that are not the subject of an independent consultancy contract.
- In addition, in so far as they do not conflict with these terms and conditions, the customary practices of the wood industry, in particular the "Tegernsee Customary Practices" as amended in 1985, complete with all enclosures and their annex, shall apply to all wood deliveries. Their text is deemed to be known. Otherwise the text will be sent to you on request.
- Any deviating terms and conditions - in particular any terms and conditions of purchase by the buyer - shall be binding only if these are confirmed in writing by the vendor.
- The buyer consents to the vendor processing the company and personal data of the buyer in accordance with the provisions of the Federal Data Protection Act.
Sect. 2 Offers - Contract Conclusion - Prices
- In relation to merchants the offers by the vendor remain non-binding, if nothing to the contrary has been declared. The offers are subject to prior sale if no binding offer had been submitted. Otherwise the offers by the vendor are revocable until an acceptance is received.
- Orders shall be deemed to have been accepted if they are either confirmed in writing by the vendor or are executed on schedule immediately upon receipt. In such cases the invoice shall also be deemed to be the order confirmation.
- Unless otherwise agreed, all prices are ex works or warehouse without any packaging plus freight and VAT.
- Any freight refunds granted shall be void if there is a material deterioration in the buyer's economic situation, in particular, if attachments or other execution proceedings are taken against him or if insolvency proceedings are instituted against him.
- If a freight-free delivery has been agreed, shipping is effected at the risk of the buyer.
- Any cost increases for which the vendor cannot be held responsible (in particular, any general increases in labour and/or material costs) shall entitle the same to an appropriate price increase, if delivery is to take place at least four weeks after conclusion of the contract or later as well as in the case of continuing obligations. Any change in value-added tax always results in an automatic price adjustment. In relation to non-merchants, a price adjustment is only possible in the case of continuing obligations or, with regard to increases in costs for which the vendor cannot be held responsible, if delivery has been agreed to be made at least four months after conclusion of the contract.
Sect. 3 Delivery and transfer of risk
- Delivery periods and delivery dates shall be deemed to be approximate and as usual among merchants, subject to correct and timely self-deliveries, unless the vendor can be held responsible for any non-compliance. Any such non-compliance entitles the buyer to assert the rights to which he is entitled only after first granting the vendor in writing a reasonable period of grace of at least 14 working days.
- Partial deliveries are permissible to a reasonable extent and must be accepted.
- Even in the case of bindingly agreed periods and dates the vendor cannot be held responsible for any delays in delivery and performance due to force majeure and any events making delivery significantly more difficult or even impossible, including in particular operational disturbances, strike, lockout, natural events, official or statutory orders, or any disruption of traffic routes, even if these occur at the vendor's suppliers. These shall entitle the vendor to postpone delivery or performance by the duration of the obstruction plus a reasonable start-up time.
- The beginning and end of any such obstruction shall be communicated by the vendor as soon as possible. At the request of the vendor, the buyer is obliged to declare within a reasonable period of time whether he is withdrawing from the contract due to the delay and/or demands damages or whether he insists on the delivery being made.
At the request of the purchase the vendor must also declare without delay whether he wishes to withdraw or deliver on expiry of the obstruction. In the event of any fruitless expiration the buyer can withdraw. All and any claims for damages are excluded.
- The vendor shall be liable with regard to any delays in delivery and performance only in cases where he himself or his vicarious agents are at fault but not in cases where his pre-suppliers are at fault. However, upon request, he is obliged to assign to the buyer any claims against his pre-suppliers possibly due to him.
- In the event of non-compliance with the grace period set according to Clause 1 the buyer may withdraw from the agreement or demand damages. The claim for damages shall be limited to the reimbursement of proven additional costs (covering purchase). The covering purchase requires that at least three comparative offers are obtained. Any claims for damages beyond the above-described scope are excluded as far as they are not based on intent or gross negligence..
The vendor shall not be liable for damages for non-fulfilment due to slight or normal negligence. The vendor shall only be liable to merchants for gross negligence and intent if the fault is caused by legal representatives or senior employees of the vendor or if other vicarious agents have violated major or cardinal obligations. In such cases, liability shall be limited to any damage foreseeable at the time that the agreement was concluded.
- Even if delivery is made free of charge, the risk passes to the buyer as soon as the delivery has been dispatched or collected. Shipping is effected at the best discretion of the vendor.
Delivery "free to construction site" or "free to storage areas/warehouse" signifies delivery without unloading and subject to the precondition of an access road suitable for heavy goods vehicles. Waiting times are taken into account and charged for. If, on instruction by the buyer or his customer, the vehicle leaves the drivable access road, the buyer shall be liable for any subsequent defects and damage arising therefrom.
- If unforeseen events within the meaning of Clause 3 significantly change the economic significance or the content of the delivery, or if such events have a significant impact on the vendor's operation, the agreement must be adapted in accordance with, and with due consideration of, good faith. If this cannot be justified economically, the vendor shall be entitled to withdraw from the agreement. As soon as he recognizes the extent of any such impact the vendor must immediately inform the buyer immediately even if initially an extension of the delivery period is agreed.
Sect. 4 Terms of payment
- Each shipment shall be invoiced with the date of the day of shipping. This applies also to any partial deliveries agreed.
- Unless agreed otherwise, and/or unless a different practice has arisen, the purchase price shall be paid without deduction within 30 calendar days after the date of invoice, or after 14 days with a 2% discount, provided that the account does not have any invoice amounts due. Only the actual value of the goods without any freight costs, labour and packaging can be discounted.
- Bills of exchange will be accepted only by special agreement with the vendor and only on account of payment, with all costs incurred being charged to the buyer. In the case of cheques payment shall be deemed to have been made when the cheque has finally been settled.
- If the buyer is in arrears with defaulting payments, default interest shall be payable to the vendor in the amount payable by the vendor to his bank for loans taken up, but at least in the amount of 5 % - if the buyer is a merchant, at least 8 % - above the base interest rate according to 247 BGB (German Civil Code), unless the buyer proves a lower amount of damage. The Vendor reserves the right to claim a provable higher amount of damage suffered.
- In the event of any default of payment, cheque or bill of exchange protest the vendor shall be entitled to make further deliveries against cash in advance only, declare all outstanding invoice amounts due with immediate effect, and to demand cash payment or provision of security against return of any bills of exchange and cheques accepted on account of payment.
- In all other respects the statutory provisions (Sections 286 ff BGB (German Civil Code)) for default of payment shall apply.
- If, subsequent to the conclusion of the agreement, the vendor becomes aware of any circumstances that would put the vendor's claim for payment at risk due to a lack of solvency on the part of the buyer, the vendor shall be entitled to refuse the performance due from him and to declare that the entire outstanding debt is immediately due and payable.
In the case of justified complaints, payments by the buyer may only be held back to an extent which is reasonably proportionate to the material defects that have occurred. Offsets against counterclaims shall be permissible only in relation to undisputed and legally established claims. If the buyer is a merchant, the rights of retention pursuant to Sections 369 HGB (German Commercial Code), 273 BGB (German Civil Code) are excluded
- In the case of justified complaints, payments by the buyer may only be held back to an extent which is reasonably proportionate to the material defects that have occurred. Offsets against counterclaims shall be permissible only in relation to undisputed and legally established claims. If the buyer is a merchant, the rights of retention pursuant to Sections 369 HGB (German Commercial Code), 273 BGB (German Civil Code) are excluded.
Sect. 5 Quality - Warranty - Notice of Defects - Liability
- Wood is a natural product. Its natural characteristics, differences and properties must therefore always be taken into consideration. In particular, the biological, physical and chemical properties must be taken into account in purchasing, processing and use. The wide range of natural colour, structure and other differences even within a single type of wood is inherent in the natural characteristics of wood as a natural product and does not constitute any grounds for complaint or liability. If necessary, the buyer must seek competent specialist advice.
- With regard to the quality of the goods, only the product description by the manufacturer shall be deemed to have been agreed. Furthermore, any public statements, promotional statements or advertisements by the manufacturer do not represent any contractual specification of the quality of the goods.
- Unless otherwise agreed, the goods to be delivered shall be produced from fresh-cut round wood. An agreed wood moisture content is to be regarded as an approximate target moisture content taking into account the usual tolerances. In the case of any technical drying process the agreed wood moisture content refers to the point in time after discharge from the drying chamber.
- In order to fulfil the warranty conditions, the buyer must check each delivery immediately upon arrival for correct quantity, contractual quality and agreed specifications.
- Any obvious defects detected must be reported by notice of complaint to the vendor in writing within 14 calendar days of receipt of goods. In the case of discolourations, the period for any such notice of complaint reduces to 7 calendar days, unless it had been agreed to deliver dry goods. No further claims or complaints can be submitted once the delivery has been accepted by the buyer, its employees or agents.
Any concealed defects, or those that are detected during or after further processing, must be reported without delay, and in any case within 10 working days. The buyer shall be responsible for providing evidence of the defect being detected on the date declared.
Commercial transactions between merchants are not subject to Sections 377 HGB (German Commercial Code).
The buyer is to notify the vendor as soon as possible upon being made aware of any warranty claim that has occurred with an end-user.
- If the buyer finds the goods to be defective, any such goods may not be disposed of, that is they must not be distributed, resold or processed until there is agreement on how to proceed or the items have been examined, and evidence secured, by an officially appointed, recognised, and sworn expert in the field.
- In the event of any justified claim, and subject to the exclusion of any claims for damages, the vendor shall only be obliged to either repair the defective item or replace it - according to normal commercial business procedures at his own discretion.
- If reworking fails even after the 2nd attempt, the purchaser may demand a reduction in price or withdraw from the agreement.
If the vendor allows a period of grace granted to the same to expire without repair/rework being carried out or a replacement being delivered, or if any such repair and/or replacement both fail or prove to be impossible, or if the vendor refuses any such repair/rework or a replacement delivery, then the buyer, at his own discretion, shall be entitled to demand the cancellation of the agreement (withdrawal) or the reduction of the purchase price (reduction).
In the case of minor defects the purchaser shall not be entitled to withdraw from the agreement. Any defects found in some part of the goods delivered do not provide any entitlement to complain about the entire delivery, unless the partial delivery is not of any interest to the buyer. In addition, any liability for defects that do not or only insignificantly impair the value or the fitness for use is excluded. Additional or short deliveries up to 10 % of the quantity ordered cannot be the subject of any complaint.
- With regard to the absence of any warranted characteristics, the vendor shall only be liable to the extent that the warranty relating to the characteristics concerned purposes to cover the buyer against any consequential damage arising from the absence of such specified characteristics. The mere citing of a DIN or EN standard does not imply that the characteristic concerned is a warranted specification.
- If the buyer is a merchant, any warranty claims expire 12 months after the transfer of risk. This shall not apply insofar as the law in accordance with Sections 438, Para. 1, No. 2, (Buildings and objects for buildings), Section 479, Para. 1 (Recourse claim) and 634a), Para. 1, No. 2 (Construction defects) BGB (German Civil Code) stipulates longer periods.
- With regard to any claims for damages Sect. 6 shall apply in all other respects.
Sect. 6 Limitation of liability - Damages
- Claims for damages by the buyer, irrespective of the legal basis, in particular due to any infringements of obligations arising from the contractual relationship and tort, shall be excluded, unless otherwise specified in the following. This applies in particular also to any consequential damage and claims for reimbursement of costs by the buyer.
- If essential contractual obligations are breached the liability of the vendor shall be limited to the contract-typical foreseeable damage.
- The provisions at Clauses 1. and 2. do not apply in the case of mandatory liability, e.g. in cases subject to the product liability law, in cases of intent and gross negligence, and of injury to life, limb and health. Neither does this involve any change in the burden of proof to the detriment of the buyer.
- The provisions set out up to Clause 3. shall also apply mutatis mutandis to the buyer.
Sect. 7 Retention of title
- All items delivered (goods subject to retention of title) shall remain the property of the vendor until full payment of the purchase price as well as payment for all other claims due to the vendor, arising from the commercial relationship, is received.
These items must not, without the seller’s consent, be pledged or used as security or collateral in any way.
- The merchandise subject to retention of title shall be further processed without charge to the vendor and without this causing him to be deemed to be the manufacturer within the meaning of article 950 BGB (German Civil Code). The buyer transfers the co-ownership of the new item to the vendor in the ratio of the invoice value of the goods with retention of title to the other processed goods at the time of processing. The new items resulting from such processing shall be regarded as goods subject to retention of title.
- If the goods supplied are combined with a moveable item in such a way that such goods become a considerable proportion of another item that needs to be regarded as a main item in its own right, the buyer shall immediately transfer to the vendor proportional co-ownership of the new item concerned. In such a case the buyer shall even now assign to the vendor all rights to any claims for remuneration against third parties for a value equal to that of the items that are subject to retention of title, along with all ancillary rights, and authorises the vendor, subject to revocation, to recover such debts. The vendor herewith accepts this pre-assignment and authorization.
- The buyer may only resell and/or further process items in the course of normal proper business proceedings, subject to the proviso that the claims defined at Clauses 2 and 3 actually pass to the vendor. This includes situations where the buyer is paid by its own customers or applies a proviso whereby title is not transferred to the end-customer until the latter has met its payment obligations due to the buyer. The buyer must agree appropriate corresponding provisions with his end-customer.
- In the case of seizures, confiscation or other dispositions or interventions by any third parties, the buyer must notify the vendor immediately and fully. If the buyer defaults on his payments, the vendor shall be entitled without any period of grace to terminate the buyer's right of ownership by unilateral declaration and to demand the return of the unprocessed material.
All of the buyer’s rights under the terms of Clauses 2 to 4 shall expire immediately in the event of any suspension of payments and I or insolvency proceedings being instituted. This does not apply to the rights of the insolvency administrator.
- The vendor's exercising of his right to retain title does not require withdrawal from the agreement. However, the purchaser shall be obliged to grant immediately to the vendor or his agents any access required to enable the same to examine the matter accordingly and dispose of the goods subject to retention of title.
- If the value of the security provided exceeds the total value of claims (reduced by downpayments and partial payments, if applicable) by more than 20 %, then the vendor seller undertakes, at its own discretion, to transfer back or release security accordingly. Once all claims by the vendor arising from the business transactions concerned have been met, ownership of the goods subject to retention of title, and the assigned receivables, pass to the buyer.
Sect. 8 Construction Performances
- With regard to all construction work, including assembly, the "Verdingungsordnung für Bauleistungen" (German regulations governing construction work) (VOB, Parts B and C) in the version valid at the time of conclusion of this agreement shall apply, provided that the contract is awarded by a contracting partner in the construction industry.
Sect. 9 Place of Performance - Place of Jurisdiction - Law
- The place of performance and place of jurisdiction for deliveries and payments (including suits filed in connection with cheques and bills of exchange) as well as for all disputes arising between the parties shall be - inasmuch as the buyer is a merchant, legal entity under public law or a special fund under public law - the vendor's principal place of business. However, the vendor shall be entitled to sue the buyer also at the buyer's place of business.
- The relations between the contracting parties are governed exclusively by the law applicable in the Federal Republic of Germany, excluding the United Nations Convention on Contracts for the International Sale of Goods.
Sect. 10 Final provisions
- If one or more of these terms and conditions should violate a legal prohibition or be legally invalid for other reasons, the validity of the remaining provisions shall remain unaffected.
- Instead of the invalid provision, terms shall be deemed to have been agreed which would most closely correspond to the economic interest and the likely intended will of the contracting parties, taking into account the remaining terms and conditions. The same applies to an omission or gap.
- The contracting parties undertake to cooperate seriously with regard to the completion of such a replacement provision.