(1) All our offers, deliveries and services are based on these terms and conditions. The following terms and conditions apply only to entrepreneurs within the meaning of § 14 BGB (German Civil Code), a legal entity under public law or a special fund under public law (hereinafter referred to as ‘Customer’).
(2) In the case of ongoing business relationships, our General Terms and Conditions shall also apply to future offers, deliveries and services to the Customer without the need for renewed express reference.
(3) Our General Terms and Conditions shall apply exclusively. The applicability of other general terms and conditions is generally excluded, unless we have expressly agreed to their application in writing.
(1) Our offers are always free of charge and subject to change without notice, unless otherwise agreed in writing. Contracts and agreements only become binding upon our written order confirmation or upon delivery. The same applies to additions, amendments or subsidiary agreements.
(2) Our written order confirmation or, if this is not available, our offer shall be decisive for the scope of delivery and service.
(3) All information about our products, in particular the illustrations, dimensions and performance data contained in our offers and printed materials, as well as other technical information, are to be regarded as approximate average values. Industry-standard tolerances in quantities, weights, numbers of items and dimensions are expressly reserved.
(4) Documents and records on which our offer is based, such as technical drawings, illustrations, descriptions, weights and dimensions, shall only be subject to the contractual agreement if this has been expressly agreed in writing. We reserve the right to make such changes and adjustments that do not significantly affect the purpose of the contract and the delivery. All documents and records remain our property and may not be retained, copied or otherwise reproduced by the customer or made available to third parties, and must be handed over to us immediately upon request. All property rights to these documents in our favour shall remain in force even if we hand over the documents to the customer.
(5) The assignment of claims by the customer against us is only permitted with our express written consent. The same applies to legal claims by the customer in connection with the contractual relationship.
(1) The agreed delivery period shall commence at the earliest upon conclusion of the contract, but not before the customer has provided us with all necessary documents and made any agreed advance payments. The delivery period shall be deemed to have been met if the delivery item has been handed over to a transport company or has been notified to the customer as ready for collection, provided that it cannot be delivered to the customer for reasons for which the customer is responsible.
(2) The delivery period shall be extended by a reasonable amount if cases of force majeure or the occurrence of unforeseeable and extraordinary events affect us or our suppliers. Unforeseeable events in this sense include, in particular, riots, strikes, lockouts, fires, seizures, boycotts, legal or official orders and restrictions, or incorrect or delayed delivery by our suppliers, insofar as these events are not our responsibility and affect our performance obligations. If the delivery period is extended by a reasonable period of time due to such circumstances, the customer is entitled to withdraw from the contract after expiry of this extended delivery period. If the customer is interested in partial deliveries, the customer may also withdraw from the contract in part. If we have already made partial deliveries and/or provided partial services, the customer may only withdraw from the entire contract if they can prove that they have no interest in a partial delivery and/or service on our part. Further statutory or contractual rights of withdrawal remain unaffected by this.
(3) If we are in default of delivery and after the customer has set a reasonable grace period and this has expired without result, the customer is entitled to withdraw from the contract or, if the customer is interested in partial delivery on our part, to withdraw from parts of the contract. Further claims by the customer – in particular claims for damages due to poor performance or damage caused by delay – are excluded, unless expressly granted in § 10 below. In cases where § 10 of these terms and conditions establishes liability on our part due to delay, the damages caused by the delay shall be limited to an amount of 0.5% to 5% of the value of the part of the delivery that could not be used by the customer as a result of the delay in delivery. The parties are free to prove that the damage was actually higher or lower.
(4) Deliveries before the expiry of the delivery period and partial deliveries are permissible, unless otherwise agreed in writing.
(5) We are entitled to deliver up to 10% more or less. Average dimensions apply at our discretion to the number of items or the cubic volume.
(6) For sales from stock, we store the goods free of charge for 6 days from the conclusion of the contract; for sales from the quay, we store the goods free of charge for 3 days from the conclusion of the contract. After that, we charge the storage costs incurred by us.
(1) The prices stated apply to deliveries ex works and are net prices, not including applicable sales taxes, even if this is not expressly stated, and not including costs for packaging, freight, installation, shipping, insurance expenses, customs clearance, any bank and transaction costs for payments and other costs incurred.
(2) In the case of carriage paid delivery, the freight must be presented without discount. It will be credited to the customer upon presentation of the relevant receipts. Any increases in freight, customs duties and other charges occurring after the date of sale shall be borne by the customer.
(3) Unless otherwise agreed, our invoices are due for immediate payment without deduction.
(4) The customer shall be in default at the latest 30 days after receipt of the invoice, unless other circumstances giving rise to default (e.g. a payment reminder or a shorter agreed payment period, or a calendar-based payment period) have been agreed. From the date of default, the customer shall owe default interest at a rate of 8% above the base rate.
(5) In the event of default in payment, we shall be entitled to make further deliveries dependent on full payment of the outstanding claims.
(6) If the customer is in arrears with a due payment, any agreed payment terms and all bills of exchange still outstanding at that time and/or all outstanding claims on our part against the customer shall become due for payment immediately and without deduction.
(7) Unless otherwise agreed in writing, we shall be entitled to adjust prices and/or freight rates if our costs for wages and salaries, raw materials or operating supplies, energy costs, freight costs and customs duties or other materials increase more than insignificantly. This right shall also apply to deliveries and services from a continuing obligation.
(8) Furthermore, we shall be entitled to refuse performance if, after conclusion of the contract, we become aware of circumstances which give rise to concerns that the customer may not be able to perform its obligations in whole or in part or within the agreed time limit. This shall not apply if the customer provides us with adequate security. This shall apply in particular if our trade credit insurer refuses to insure the purchase price risk after conclusion of the contract.
(9) We shall be entitled to charge interest on arrears at a rate of 5% above the respective base rate without prior warning.
(10) Offsetting against disputed and not legally established counterclaims of the customer is excluded. Complaints by the customer do not affect the payment obligation or due date, and the customer waives the right to refuse performance or exercise a right of retention, unless we or our legal representatives or vicarious agents are guilty of gross breaches of contract or the customer’s counterclaims underlying the right to refuse performance or right of retention are undisputed or have been legally established.
(11) Cheques and/or bills of exchange shall only be accepted by us as a means of payment if we have agreed to such a method of payment in writing in advance. All costs incurred by us as a result of such payment in this case shall be borne by the customer.
(1) In the event of termination of the order by the customer prior to delivery of the ordered goods, the customer remains obliged to pay the agreed purchase price. The expenses that we save as a result of the termination of the order or the profit that we lose as a result of the non-delivery shall be deducted from the purchase price to be paid. We are free to choose which calculation method we apply.
(2) In the event of termination by the customer before the start of production of the services to be delivered, the amount to be reimbursed to us by the customer shall be agreed at a flat rate of 10% of the agreed purchase price. Both we and the customer are free to prove that the actual damage is higher or lower than this amount.
(1) Unless otherwise agreed in writing, the delivery items shall be handed over to the customer ex works.
(2) The risk of accidental loss of the delivery items shall pass to the customer upon handover of the delivery items to the transport person. This shall also apply if we carry out the transport for the customer, even if we bear the costs of packaging and transport. If the dispatch of the items is delayed due to circumstances for which the customer is responsible, the risk of accidental loss shall pass to the customer upon notification of the readiness of the delivery.
(3) The manner of packaging and dispatch of the items shall be at our discretion, unless otherwise agreed in writing.
(4) Transport insurance for the delivery items will only be taken out at the express written request and expense of the customer.
(1) We retain title to all items delivered by us until all our claims against the customer arising from the business relationship have been paid in full, including claims arising from cheques and bills of exchange. In the case of payments by cheque and bill of exchange, we retain title to the delivered items until the risk of recourse has expired.
(2) If the customer processes the goods subject to retention of title, this shall be done for us as the manufacturer within the meaning of § 950 BGB (German Civil Code). If the goods delivered by us are processed or inseparably mixed with other items, we shall acquire co-ownership of the new items in proportion to the invoice value of the goods to the invoice value of the other goods used. The customer may further process the delivery items in the ordinary course of business, provided that the aforementioned security interests are maintained.
(3) The customer may resell the delivery items in the ordinary course of business as long as our retention of title to the items is maintained (the assignment of the right of resale is regulated in the following paragraph (4)). The customer is not permitted to transfer ownership, transfer ownership by way of security, pledge or take similar measures.
(4) In the event of resale of the delivery items, the customer hereby assigns to us all claims against third parties arising from the resale. We hereby accept this assignment. If we are only co-owners of the goods sold, the assignment shall only be made up to the amount of our claims against the customer.
(5) We revocably authorise the customer to collect the claim assigned to us for our account in their own name. Revocation of this authorisation is only permissible if the customer does not properly fulfil their obligations under this contract, in particular their payment obligations, becomes insolvent or unable to pay, has filed for insolvency proceedings or such an application has been rejected for lack of assets. In the event of revocation of the authorisation to collect our claims, the customer shall inform the debtor of the assignment of the claim to us. We are also free to disclose the extended retention of title to the third party.
(6) The customer’s right to dispose of the reserved goods, to process them or to collect the assigned claims shall expire even without express revocation if insolvency proceedings are opened against the customer’s assets or are rejected for lack of assets, in the event of suspension of payments, if an application for the opening of insolvency proceedings is filed by the customer or a third party, or in the event of insolvency or over-indebtedness. In these cases, as well as in the cases of § 7 (5), we shall be entitled to withdraw from the contract after expiry of a reasonable period of time, with the result that we may take back the goods subject to retention of title. The customer is obliged to hand over the goods subject to retention of title. The proceeds of any sale of the goods subject to retention of title shall be credited to the customer’s obligations towards us, less the costs of sale.
(7) In the event of revocation of the authorisation to collect the assigned claims, the customer is obliged to disclose to us immediately in writing against which third parties claims from assigned rights exist and in what amount.
(8) The customer is obliged to treat the goods subject to retention of title with care and to insure them against all usual risks at their own expense. The customer hereby assigns to us their claims in this regard from the corresponding insurance contracts. We hereby accept these assignments.
(9) The customer is obliged to notify us immediately in writing of any seizures of the goods subject to retention of title and/or the claims assigned to us and of any other claims asserted by third parties with regard to the goods subject to retention of title or the claims assigned to us. In the event of seizures, a copy of the seizure report and an affidavit must be sent to us at the same time, stating that the seized goods are still subject to the retention of title agreed with us.
(10) The customer is further obliged to provide us with information at any time about the whereabouts of the goods subject to retention of title and about the claims arising from their resale.
(11) If the securities provided to us exceed the claims to be secured by more than 20%, we shall be obliged to release securities of an appropriate amount at our discretion at the customer’s request.
(12) The customer must notify us immediately in writing if third parties gain access to the goods subject to retention of title, the assigned claims or other documents and records. All costs of legal defence of our goods subject to retention of title, including against third parties, shall be borne by the customer.
(1) We shall be liable for material defects and defects of title in the delivery item already existing at the time of transfer of risk in accordance with the following provisions.
(2) Warranty claims against us are only available to the direct purchaser and are not transferable without our consent.
(3) Certain characteristics are only considered to be guaranteed by us if we have expressly confirmed this in writing. A guarantee is only considered to have been given by us if we have designated a characteristic as ‘guaranteed’ in writing.
(4) Recognisable defects, short deliveries or incorrect deliveries must be reported to us in writing immediately, at the latest within one week of delivery, but in any case before connection, mixing, processing or installation; otherwise, the delivery item shall be deemed to have been approved, unless we or our legal representatives or vicarious agents are guilty of malice. Hidden defects must be reported to us in writing immediately, at the latest 7 days after their discovery. Sections 377 and 378 of the German Commercial Code (HGB) apply in addition.
(5) We must be given the opportunity to jointly verify the reported complaints and to be present when material samples are taken.
(6) In the case of an item that has been used for a building in accordance with its normal use and has caused its defectiveness, claims for defects shall become time-barred 5 years after delivery of the delivery item. Otherwise, claims for defects shall become time-barred 12 months after delivery.
(7) Our warranty for material defects and defects of title is limited to subsequent performance. Within the scope of our obligation to provide subsequent performance, we shall be entitled to choose between repair or replacement. If we do not fulfil this obligation within a reasonable period of time or if a repair fails despite repeated attempts, the customer shall be entitled to reduce the purchase price or withdraw from the contract. Rescission of the contract shall be excluded if the defect is only minor. Furthermore, if we have made partial deliveries that are free of defects, cancellation of the entire contract is only permissible if the customer’s interest in the partial deliveries made has demonstrably ceased to exist. Claims, in particular claims for reimbursement of expenses or damages, shall only exist within the scope of the provisions of § 10 below. Replaced parts shall become our property or remain our property and shall be returned to us at our expense upon request.
(8) The customer shall send us the defective goods for repair or replacement at their own risk, unless the nature of the delivery makes it impossible to return the goods. We shall bear the transport costs incurred for the purpose of subsequent performance, but only from the place to which the purchased goods were delivered as intended and up to a maximum of the purchase price.
(9) The customer must give us the time and opportunity necessary for repair or replacement. Only in urgent cases of danger to operational safety, the prevention of disproportionately large damage or in the event of a delay in the rectification of defects by us shall the customer have the right, after prior notification to us, to rectify the defect himself or have it rectified by third parties and to demand reimbursement of the necessary costs from us.
(10) Recourse claims pursuant to Sections 478, 479 of the German Civil Code (BGB) shall only exist if the claim by the consumer was justified and only to the extent permitted by law, but not for goodwill arrangements not agreed with us, and shall be subject to the recourse claimant’s compliance with its own obligations, in particular the observance of any obligations to give notice of defects.
(11) The further processing or installation of goods delivered by us shall always be deemed a waiver of the notice of defects, insofar as the defect was recognisable.
(12) In the event of justified notices of defects, payments by the customer may only be withheld to an extent that is reasonable in relation to the material defects that have occurred. If the complaint was unjustified, we shall be entitled to demand compensation from the customer for the expenses incurred by us as a result.
(13) Claims for defects shall not exist in the case of insignificant deviations from the agreed or customary quality or usability, e.g. insignificant deviations in colour, dimensions and/or quality or performance characteristics of the products.
(14) The recognition of material defects must always be made in writing.
(15) Our warranty does not extend to the suitability of the delivery item for the customer’s intended use, which deviates from the usual use, unless this has been agreed in writing.
(16) Our warranty obligation extends only to the delivery of newly manufactured products. Unless otherwise agreed, used products are sold as is, excluding any warranty.
(17) Customers who are resellers should maintain a sufficient stock of spare parts in order to be able to react quickly when replacing a defective part.
(18) Warranty claims do not apply to normal wear and tear, damage caused by the buyer or a third party, improper use or misuse of the products, including accidental or deliberate destruction or damage to the products.
(19) In the case of third-party products, our warranty is limited to the assignment of the claims we have against the supplier of the third-party product. In the event that the customer is unable to enforce their warranty claims against the supplier of the third-party product, we shall provide warranty within the scope of our General Terms and Conditions.
(1) In addition to the cases regulated elsewhere in these terms and conditions, the customer may withdraw from the contract by written declaration if it becomes impossible for us to fulfil our obligations before the risk of accidental loss of the delivery items has passed to the customer. In the event of partial impossibility of our obligations, the customer may then withdraw from the contract if he is obviously not interested in partial deliveries. Otherwise, the customer may demand a reasonable reduction in the purchase price. Withdrawal from the contract is generally only permissible for the customer if the breach of our contractual obligations is substantial.
(2) If neither we nor the customer are responsible for the impossibility of performance, we shall be entitled to payment for services rendered in part.
(1) We shall only be liable for damages, regardless of the legal grounds,
a) if we, our legal representatives or vicarious agents are guilty of intent or gross negligence
b) in the event of culpable injury to life, limb or health
c) in the event of culpable injury to life, limb or health
d) in the event of defects which we have fraudulently concealed or whose absence we have guaranteed
e) to the extent that liability exists under the Product Liability Act for personal injury or property damage to privately used items.
We shall not be liable for any further claims for damages.
(2) However, in the event of a culpable breach of essential contractual obligations, we shall only be liable to a limited extent for reasonably foreseeable damage typical for this type of contract. The foreseeable damage typical for this type of contract shall be assessed at the contract value of the service concerned.
(1) If we are obliged to take back delivered items from the customer in accordance with these terms and conditions, we shall be obliged to take back some or all of the delivery items insofar as these items are unused, unaltered, in mint condition and in accordance with our current delivery programme.
(2) In the event that we take back delivery items from the customer, the customer shall receive a credit note for 90% of the calculated net price of the returned delivery items in accordance with the above paragraph (1). The customer shall not be entitled to any further claims; in particular, the customer shall not be entitled to a full or partial refund of the price paid by him for delivery items.
(3) In the event of the return of delivery items due to defects for which we are not responsible, the return delivery shall be at the customer’s expense.
In the case of import and export transactions, we shall be entitled to withdraw from the contract if the necessary approvals are not granted to us or our suppliers or if the execution of the contract is or becomes impossible as a result of official prohibitions. The customer cannot derive any claims against us from this.
(1) The place of performance for all claims arising from the business relationship between us and the customer is Warendorf.
(2) The place of jurisdiction for all claims arising from the business relationship, including those arising from cheques and bills of exchange, is the place of performance. However, we are also entitled to take action against the customer at their general place of jurisdiction.
(3) The law of the Federal Republic of Germany shall apply exclusively to all disputes arising from contracts to which these terms and conditions apply and to all disputes arising from the business relationship between us and the customer. The application of the UN Convention on Contracts for the International Sale of Goods (CISG) and international private law is excluded.
(1) Should individual provisions of these terms and conditions be wholly or partially invalid, this shall not affect the validity of the remaining provisions.
(2) Unless otherwise agreed in the above terms and conditions of sale and delivery, commercial practices, in particular those of the members of the Verein Deutscher Holzeinfuhrhäuser e.V. (Association of German Timber Importers), shall apply to trade in overseas round timber and veneers.