1.1 Unless expressly agreed otherwise, the following “General Terms and Conditions of Delivery and Payment” (GTCD) shall apply – in addition to the customs in the timber industry (Tegernsee customs) – to all contracts, deliveries and other services in business transactions with entrepreneurs within the meaning of Section 14 of the German Civil Code (BGB), legal entities under public law or special funds under public law (collectively referred to as “Buyer”).
1.2 Our ALZ apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the buyer shall only become part of the contract if and insofar as we have expressly agreed to their validity. This requirement of consent shall apply in any case, for example even if we provide the service to the buyer without reservation in the knowledge of the buyer’s GTC.
1.3 Our GT&Cs apply in particular to contracts for the sale and/or delivery of movable goods (“Goods”), irrespective of whether we manufacture the Goods ourselves or purchase them from suppliers (Sections 433, 650 BGB).
1.4 Unless otherwise agreed, the GTCS in the version valid at the time of the Buyer’s order or in any case in the version last communicated to him in text form shall also apply as a framework agreement for similar future contracts, without us having to refer to them again in each individual case.
1.5 Individual agreements made with the Buyer in individual cases (including collateral agreements, supplements and amendments) shall in any case take precedence over these GT&Cs. Subject to proof to the contrary, a written contract or our written confirmation shall be decisive for the content of such agreements.
1.6 Legally relevant declarations and notifications to be made to us by the Buyer after conclusion of the contract (e.g. setting of deadlines, notification of defects, declaration of withdrawal or reduction) must be made in text form to be effective. Statutory formal requirements and further evidence, in particular in the event of doubts about the legitimacy of the declarant, remain unaffected.
1.7 References to the validity of statutory provisions are for clarification purposes only. Even without such clarification, the statutory provisions shall therefore apply unless they are directly amended or expressly excluded in these ALZ.
2.1 The offers contained in the catalogs and sales documents of the seller, as well as – unless expressly designated as binding – on the Internet are always non-binding and subject to change, i.e. only to be understood as an invitation to submit an offer.
2.2 The order of the goods by the Buyer shall be deemed to be a binding contractual offer. Unless otherwise stated in the order, we are entitled to accept this contractual offer within two (2) weeks of its receipt by us. Orders shall be deemed accepted if they are either confirmed by us 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 discretion, indicate that the purchase price claim is jeopardized by the Buyer’s inability to pay, the Seller shall be entitled, after setting a reasonable deadline, to demand concurrent payment or corresponding securities at the Buyer’s discretion and, in the event of refusal, to withdraw from the contract, whereby the invoices for partial deliveries already made shall become due immediately.
3.1 Delivery shall be ex warehouse, which shall also be the place of performance for the delivery and any subsequent performance. At the request and expense of the buyer, the goods will be shipped to another destination (sale to destination). Unless otherwise agreed, we are entitled to determine the type of shipment (in particular transport company, shipping route, packaging) ourselves. We reserve the right to correct and timely self-delivery.
3.2 The risk of accidental loss and accidental deterioration of the goods shall pass to the Buyer at the latest upon handover. In the case of sale by dispatch, however, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay shall already pass upon delivery of the goods to the forwarding agent, the carrier or the person or institution otherwise designated to carry out the shipment. If acceptance has been agreed, this shall be decisive for the transfer of risk. The statutory provisions of the law on contracts for work and services shall also apply accordingly to an agreed acceptance. If the buyer is in default of acceptance, this shall be deemed equivalent to handover or acceptance.
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 meet binding delivery deadlines for reasons for which we are not responsible (non-availability of the service), we shall inform the Buyer of this immediately and at the same time notify the Buyer of the expected new delivery deadline. If the service is also not available within the new delivery period, we are entitled to withdraw from the contract in whole or in part; we will immediately reimburse any consideration already provided by the buyer. A case of non-availability of the service in this sense is in particular the failure of our supplier to deliver to us on time, if neither we nor our supplier are at fault or if we are not obliged to procure in the individual case.
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 it continues to insist on delivery or withdraws from the contract due to the delay and/or demands compensation instead of performance.
3.7 The occurrence of our delay in delivery shall be determined in accordance with the statutory provisions. In any case, however, a reminder from the buyer is required. If we are in default of delivery, the buyer may demand lump-sum compensation for the damage caused by the delay. The liquidated damages shall amount to 0.5% of the net price (delivery value) for each completed calendar week of delay, but shall not exceed 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 significantly less damage than the above lump sum.
3.8 The Buyer’s rights in accordance with Clause 7 of these GT&Cs and our statutory rights, in particular in the event of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or subsequent performance), shall remain unaffected.
4.1 Unless otherwise agreed, our current prices at the time of conclusion of the contract shall apply ex warehouse (plus statutory VAT). The purchase price is due and payable within 14 days of invoicing and delivery or acceptance of the goods.
4.2 In the case of sales shipment (3.1), the Buyer shall bear the transportation costs ex warehouse and the costs of any transportation insurance requested by the Buyer. Any customs duties, fees, taxes and other public charges shall be borne by the buyer.
4.3 If the buyer and seller participate in a company direct debit procedure, it shall be sufficient if the buyer receives the pre-notification (“prenotification”) of the direct debit amount and due date fees one day before the due date.
4.4 We are entitled at any time, even in the context of an ongoing business relationship, to make a delivery in whole or in part only against advance payment. We shall declare a corresponding reservation with the order confirmation at the latest.
4.5 Upon expiry of the above payment period (4.1), the Buyer shall be in default. During the period of default, interest shall be charged on the purchase price at the applicable statutory default interest rate. We reserve the right to assert further claims for damages caused by delay. Our claim to commercial maturity interest (§ 353 HGB) against merchants remains unaffected. Any agreed discounts shall not be granted if the buyer is in arrears with the payment of earlier deliveries. Discount periods begin to run from the invoice date.
4.6 If the Buyer is in default of payment due to a reminder (§ 286 para. 1 BGB), the Seller is entitled to take back or demand the return of the goods after prior reminder. The seller may also prohibit the removal of the delivered goods. Taking back the goods is deemed to be a withdrawal from the contract.
4.7 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 it remained unknown to him as a result of gross negligence, unless the seller has fraudulently concealed the defect or other reason for complaint or has assumed a guarantee for the quality of the item. Otherwise, payment may only be withheld 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. The latter should also decide on the distribution of the costs of its involvement at its reasonable discretion.
4.8 Offsetting or retention is only possible for the buyer with undisputed or legally established claims. In the event of defects in the delivery, the Buyer’s counter-rights shall remain unaffected.
4.9 If it becomes apparent after conclusion of the contract (e.g. through an application to open insolvency proceedings) that our claim to the purchase price is jeopardized by the Buyer’s inability to pay, we shall be entitled to refuse performance in accordance with the statutory provisions and – if necessary after setting a deadline – to withdraw from the contract (Section 321 BGB). In the case of contracts for the manufacture of non-fungible goods (custom-made products), we may declare our withdrawal immediately; the statutory provisions on the dispensability of setting a deadline shall remain unaffected.
5.1 Wood is a natural product; its natural properties, deviations and characteristics must therefore always be observed. In particular, the buyer must take its biological, physical and chemical properties into account when purchasing and using it.
5.2 The range of natural differences in color, structure and other differences within a type of wood is part of the properties of the natural product wood and does not constitute grounds for complaint or liability.
5.3 If necessary, the Buyer must obtain professional advice.
6.1 The properties of the goods, in particular Quality, grade and dimensions are determined by the agreements between the parties. The product descriptions that are the subject of the individual contract shall be deemed to be an agreement on the quality of the goods. In all other respects, it is to be assessed in accordance with the statutory provisions whether a defect exists or not (§ 434 BGB). The seller is not bound by public statements made by the manufacturer or other third parties (e.g. advertising statements) if he was not aware of them and could not have been aware of them, if the statement had been corrected in the same or an equivalent manner at the time the contract was concluded or if the statement could not have influenced the decision to purchase. Declarations of conformity and CE markings do not constitute independent guarantees. Suitability and usage risks lie with the buyer.
6.2 The Seller shall only be liable for defects within the meaning of § 434 BGB as follows: The buyer must immediately inspect the goods received for quantity and quality. Obvious and hidden defects must be reported to the seller in writing within 14 days of becoming aware of them. In the case of mutual commercial transactions between merchants, §§ 377, 381 HGB remain unaffected. Reference is also made to the Tegernsee 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 appointed by the Chamber of Industry and Commerce at the buyer’s place of business has provided evidence.
6.4 In the event of justified complaints, the Seller shall be entitled to determine the type of subsequent performance (replacement delivery, rectification of defects), taking into account the type of defect and the legitimate interests of the Buyer. We are entitled to make the subsequent performance owed dependent on the buyer paying the purchase price due. However, the buyer is 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 made by a consumer.
6.6 The Buyer shall give us the time and opportunity required for the subsequent performance owed, in particular to hand over the rejected goods for inspection purposes. In the event of a replacement delivery, the Buyer shall return the defective item to us in accordance with the statutory provisions. Subsequent performance shall neither include the removal of the defective item nor the reinstallation if we were not originally obliged to install it.
6.7 We shall bear or reimburse the expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labor and material costs and, if applicable, removal and installation costs, in accordance with the statutory provisions, if a defect actually exists. Otherwise, we may demand compensation from the Buyer for the costs incurred as a result of the unjustified request to remedy the defect (in particular inspection and transport costs), unless the lack of defectiveness was not recognizable to the Buyer.
6.8 If the supplementary performance has failed or if a reasonable deadline to be set by the Buyer for the supplementary performance has expired unsuccessfully or is dispensable according to the statutory provisions, the Buyer may withdraw from the purchase contract or reduce the purchase price. However, there is no right of withdrawal in the event of an insignificant defect.
6.9 Claims of the Buyer for damages or reimbursement of futile expenses shall only exist in accordance with Section 7, even in the case of defects, and are otherwise excluded.
7.1 Unless otherwise stated in these GT&Cs, 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 – irrespective of the legal grounds – within the scope of fault-based liability in the event of intent and gross negligence. In the event of simple negligence, we shall only be liable, subject to a milder standard of liability in accordance with statutory provisions (e.g. for care in our own affairs), for a) for damages resulting from injury to life, body or health and b) for damages arising from the not insignificant breach of a material contractual obligation (obligation whose fulfillment is essential for the proper execution of the contract and on whose compliance the contractual partner regularly relies and may rely); in this case, however, our liability is limited to compensation for the foreseeable, typically occurring damage.
7.3 The limitations of liability resulting from clause 7.2 shall also apply in the event of breaches of duty by or in favor of persons whose fault we are responsible for in accordance with statutory provisions. They do not apply if we have fraudulently concealed a defect or have assumed a guarantee for the quality of the goods and for claims of the buyer under the Product Liability Act.
7.4 The Buyer may only withdraw from or terminate the contract due to a breach of duty that does not consist of a defect if we are responsible for the breach of duty. A free right of termination of the buyer (in particular according to §§ 650, 648 BGB) is excluded. Otherwise, the statutory requirements and legal consequences apply.
8.1 Notwithstanding § 438 para. 1 No. 3 BGB, the general limitation period for claims arising from material defects and defects of title is one (1) year from delivery. If acceptance has been agreed, the limitation period shall commence upon acceptance.
8.2 However, if the goods are a building or an item that has been used for a building in accordance with its customary use and has caused its defectiveness (building material), the limitation period shall be five (5) years from delivery in accordance with the statutory provisions (Section 438 (1) No. 2 BGB). Other special statutory provisions on the statute of limitations (in particular § 438 Para. 1 No. 1, Para. 3, §§ 444, 479 BGB) shall also remain unaffected.
8.3 The above limitation periods of the sales law shall 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 of the buyer acc. Section 7.2 p. 1 and p. 2 a) as well as under the Product Liability Act shall, however, become time-barred in accordance with the statutory provisions.
9.1 The Seller retains title to the goods until the purchase price has been paid in full.
9.2 If the goods subject to retention of title are processed by the Buyer into a new movable item, the processing shall be carried out for the Seller without the Seller being obligated as a result; the new item 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 the ratio of the value of the goods subject to retention of title to the other goods at the time of processing. If the goods subject to retention of title are combined, mixed or combined with goods not belonging to the seller in accordance with §§ 947, 948 BGB the seller becomes co-owner in accordance with the statutory provisions. If the buyer acquires sole ownership by combining, mixing or blending, he hereby assigns co-ownership to the seller in proportion to the value of the reserved goods to the other goods at the time of combining, mixing or blending. In such cases, the buyer shall store the item owned or co-owned by the seller, which is also deemed to be reserved goods within the meaning of the above conditions, free of charge.
9.3 If goods subject to retention of title 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 goods subject to retention of title with all ancillary rights and priority over the rest; the Seller accepts the assignment. The value of the reserved goods shall be the invoice amount of the seller, which, however, shall not be taken into account if it is opposed by third party rights. If the resold goods subject to retention of title are co-owned by the seller, the assignment of the claims shall extend to the amount corresponding to the value of the seller’s share in the co-ownership.
9.4 If goods subject to retention of title are integrated by the Buyer as an integral part of an immovable object (a) a third party; or (b) of the buyer, the buyer hereby assigns the claims against the (a) the third party; or (b) to the purchaser in the event of sale, assignable claims for remuneration in the amount of the value of the reserved goods with all ancillary rights, including a right to the granting of a lien in rem, with priority over the rest; the seller accepts the assignment. Section 9.3, sentences 2 and 3 apply accordingly.
9.5 The Buyer shall only be entitled and authorized to resell, use or install the goods subject to retention of title in the ordinary course of business and only on condition that the claims within the meaning of clause 9.3 or 9.4 are actually transferred to the Seller. The buyer is not entitled to dispose of the reserved goods in any other way, in particular by pledging them or assigning them as security.
9.6 The Seller authorizes the Buyer, subject to revocation, to collect the claims assigned in accordance with Clauses 9.3 and 9.4. The seller will not make use of his own right of collection as long as the buyer meets his payment obligations, including to third parties. At the request of the seller, the buyer must name the debtors of the assigned claims and notify them of the assignment; the seller is authorized to notify the debtors of the assignment himself.
9.7 The right to resell, use or install the goods subject to retention of title or the authorization to collect the assigned claims shall expire upon suspension of payment and/or application for the opening of insolvency proceedings. This does not apply to the rights of the insolvency administrator.
9.8 If the value of the securities granted exceeds the claims (possibly reduced by down payments and partial payments) by more than 20 %, the seller shall be obliged to retransfer or release them at his discretion.
10.1 The place of performance and jurisdiction for deliveries and payments (including actions on checks and bills of exchange) as well as all disputes arising between the parties shall be the Seller’s head office if the Buyer is a merchant, a legal entity under public law or a special fund under public law. The same applies if the buyer is an entrepreneur (§ 14 BGB). In all cases, however, we shall also be entitled to bring an action at the place of performance of the delivery obligation in accordance with these GTD or an overriding individual agreement or at the Buyer’s general place of jurisdiction. Overriding statutory provisions, in particular regarding exclusive responsibilities, remain unaffected.
10.2 The relationship between the contracting parties shall be governed exclusively by the law applicable in the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
10.3 If the Seller is prevented from fulfilling its obligations due to the occurrence of unforeseeable, extraordinary circumstances which it cannot avert despite exercising reasonable care in the circumstances of the case, e.g. operational disruptions, official interventions, energy supply difficulties, strikes or pandemics, regardless of whether these circumstances occur in the area of the Seller or a supplier, the delivery period or the period for the provision of services shall be extended to a reasonable extent. If performance becomes impossible due to the aforementioned circumstances, the seller shall be released from its performance obligations.
10.4 The Buyer is hereby informed that the Seller processes the necessary personal data obtained in the course of the business relationship in accordance with the provisions of the applicable European and German data protection laws for the purpose of conducting business.
10.5 Should any provision of these GT&Cs be invalid (e.g. unlawful 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 that has a similar and valid economic and legal effect. The same applies to any gaps or omissions in the ALZ.
All rights reserved by GD Holz e.V. Reproduction and/or use by non-members prohibited.
Original version by Gesamtverband Deutscher Holzhandel e.V., Wiesbaden, acc. § Section 38 para. 2, No. 3 GWB with the Federal Cartel Office on March 22, 2002 and published in the Federal Gazette No. 80 of April 27, 2002.
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