Clause 1: General provisions, scope of application
(1) In addition to the customary requirements of the timber industry (Tegernsee standards called "Tegernseer Gebräuche" in German) in their respective valid version, these general contractual conditions (GCC) shall apply to all our business relations with customers (hereinafter “buyers”) who are not consumers in the course of business transactions as defined by article 310, sect. 1 of the German Civil Code (BGB). If these GCC are in conflict with the Tegernseer Gebräuche, the GCC shall prevail and then apply exclusively.
(2) The GCC shall apply in particular to contracts for the sale and/or supply of movable items (hereinafter also “goods”), regardless of whether we manufacture the goods ourselves or acquire them from our own suppliers (articles 433, 651 BGB).
(3) The respective version of the GCC shall also be valid as a framework agreement for future contracts for the sale and/or delivery of movable goods with the same buyer, without us having to refer to them again in each individual case. We shall inform the buyer immediately of any changes affecting our GCC.
(4) Our GCC shall apply exclusively. Alternative, contrary or additional general terms and conditions of business of the buyer shall only apply if, and only to the extent that, we have expressly consented to their application. This requirement for consent on our part shall apply in any case and even if we are aware, for example, of the buyer’s GT&C and deliver without reservation.
(5) Individual agreements made with the buyer in specific cases (including ancillary agreements, supplements and amendments) shall in any case take precedence over these GCC. The application of such accords shall be subject to a written agreement or to written confirmation issued by us.
(6) Legally relevant declarations and notifications issued to us by the buyer after conclusion of the agreement (e.g. concerning delivery deadlines, claims for defects, notifications of withdrawal or reduction) must be made in writing to be effective.
(7) Notifications regarding the validity of legal regulations are for clarification only. These legal provisions shall also apply without such clarification, insofar as they are not subject to immediate limitation or exclusion under the terms of these GCC.
Clause 2: Conclusion of the agreement
(1) Our quotations are non-binding and subject to amendment. This shall also apply if we provide the buyer with catalogues, technical documentation (e.g. drawings, plans, calculations, references to DIN standards), other product descriptions or documents (including in digital format), in which we reserve the right to intellectual-property rights and copyright.
(2) The ordering of goods on the buyer’s part shall constitute a contractually binding offer.
(3) Acceptance may be declared either in writing (e.g. by order confirmation) or by immediate completion of the order concerned. In the event of acceptance by immediate completion of the order, the corresponding invoice shall be deemed to be the order confirmation.
Clause 3: Data storage
The buyer is hereby notified that the seller processes personal data obtained within the framework of the business relationship in accordance with the provisions of the German federal law governing data protection (BDSG).
Clause 4: Delivery time and delays
(1) The delivery time shall be individually agreed, or stated by us upon acceptance of the order. Delivery shall otherwise take place within approximately six weeks of entering into the agreement.
(2) If we are unable to meet binding delivery deadlines for reasons beyond our control (non-availability of an item or service), we will immediately inform the buyer accordingly and at the same time issue notification regarding the anticipated new delivery time. If it is still not possible to deliver within the new deadline, we shall be entitled to withdraw from the agreement, partly or in whole, while immediately refunding any payment already made by the buyer. In particular, the non-availability of an item or service in this sense may result from failure on the part of our own suppliers to deliver in a timely manner, if we have concluded a congruent cover transaction, if neither we nor our supplier are at fault, or if we are not obliged to procure goods or services in individual cases. The buyer shall not be entitled to withdraw from the agreement in such cases, or to claim that the basis of the transaction no longer exists. The risk of fitness for use shall correspond exclusively to the buyer, including if delivery is delayed due to force majeure or operational disruption, strike, lockout, natural event, pandemic, epidemic, official notice or legal order.
(3) The occurrence of delay in delivery on our part shall be as determined by statutory provision. A reminder from the buyer shall however be required in any case. If we fall into delay with delivery, the buyer may demand a lump sum in compensation for resulting loss and damage. Compensation for loss and damage shall amount to 0.5% of the net price (delivery value) for each complete calendar week of delay, but shall not exceed 5% of the delivery value of the delayed items concerned. We reserve the right to prove that the buyer has incurred no loss and damage at all, or loss and damage significantly lower than that implied by the above lump sum.
(4) The buyer’s rights under the terms of clause 10 of these GCC and our statutory rights, particularly in the event of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonable performance and/or subsequent performance) remain unaffected.
Clause 5: Delivery, transfer of risk, acceptance, delay in acceptance
(1) Delivery is carried out from the warehouse, which is also the place of performance. Goods may be sent to an alternative destination at the buyer’s request and at its expense (sales shipments). Unless there is agreement to the contrary, we shall be entitled, at our discretion, to determine the manner of despatch (with particular reference but not limited to the carrier, transit route and packing).
(2) The risk of accidental deterioration of or damage to the goods supplied shall be transferred to the buyer at the latest at the moment of delivery. In the case of sales shipments however, the risk of accidental deterioration of or damage to the goods supplied shall be transferred at the moment in which the goods are handed over to the haulage contractor, the carrier or whichever person, party or agency is responsible for transport. If formal acceptance has been agreed, this shall determine the moment of transfer of risk. The statutory provisions of contract law shall also apply accordingly in the event of agreed acceptance. This transfer of risk shall apply even if acceptance of delivery is delayed on the part of the buyer.
(3) If the buyer delays acceptance, refrains from cooperating or puts back delivery for other reasons attributable to it, we shall be entitled to claim for the resulting loss or damage, including any additional costs (e.g. for storage) that might be incurred. For this we charge flat-rate compensation amounting to 1% of order value per calendar day, counted from the original delivery date or – if there is no delivery date – from the date of notification of readiness for despatch.
Our right to demonstrate higher loss and damage and our statutory claims (in particular claims for additional expenses, appropriate compensation and termination) shall remain unaffected. The lump sum may however be offset against further claims. The buyer shall be entitled to prove that we have incurred no loss and damage at all, or loss and damage significantly lower than that implied by the above lump sum.
Clause 6: Pricing and terms of payment
(1) Unless otherwise individually agreed, our current prices at the time of conclusion of the agreement (ex-warehouse, plus statutory sales tax/VAT) shall apply.
(2) In the case of sales shipments (clause 5, sect. 1), the buyer shall meet the transport costs ex-warehouse and the costs of any transport insurance requested by the buyer. The buyer shall settle any and all duties, fees, taxes and other official charges that might be payable. In accordance with the applicable law (Verpackungsverordnung), we do not – with the exception of pallets – accept the return of transport or packing materials, which become the property of the buyer.
(3) The purchase price falls due, and shall be settled, within thirty days of the date of issue of the invoice and delivery and/or acceptance of the goods.
(4) The buyer shall be in arrears immediately upon expiry of the above payment deadline. The purchase price shall be subject to interest during the delay at the applicable statutory interest rate. We reserve the right to claim further compensation for loss and damage. This shall not affect our right to claim for interest on the overdue accounts of commercial customers, (article 353 of the German Commercial Code / HGB).
(5) The buyer shall be entitled to offset or retain payment only to the extent that the claim is legally established or undisputed. In the event of defects affecting delivery, the buyer’s right to bring counterclaims shall remain unaffected, particularly in accordance with clause 9, sect. 6 subsection 2 of these GCC.
(6) If it becomes apparent, after conclusion of the agreement, that our claim to the purchase price is endangered by the buyer’s lack of capacity (e.g. if there is an application for insolvency proceedings), we shall be entitled to refuse to deliver in accordance with the statutory regulations and, after setting any additional deadline that might be required, to withdraw from the agreement (article 321 BGB). In the case of contracts for the production of customised, and otherwise unsaleable, goods (individual items), we may declare withdrawal immediately. The statutory provisions on waiving of the obligation to set an additional deadline remain unaffected.
(7) If the buyer and the seller use a direct debit arrangement, it shall be sufficient if pre-notification of the direct debit amount and due-date are sent to the buyer one day before the due-date concerned.
Clause 7: Retention of title
(1) We reserve the right to retain title to goods sold until full settlement of all our current and future claims resulting from the sales contract and current business relationship (secured claims).
(2) Goods subject to retention of title must not be transferred to any third party or parties, or used as security or collateral, until all secured claims for payment have been settled in full. The buyer must notify us immediately and in writing of all and any third-party claims (including their extent) to goods to which we hold title.
(3) We shall be entitled, in the event of contractual infringement on the part of the buyer, with particular reference but not limited to failure to settle the due purchase price, to exercise our legal right to withdraw from the agreement and demand the return of the goods concerned on the grounds of retention of title and withdrawal. If the buyer fails to settle the purchase price due, we shall only be entitled to exercise our rights after first granting the buyer, without result, a reasonable time in which to make payment, or if such a grace period is established in law.
(4) The buyer shall be entitled to process and sell in the normal course of business the items subject to reservation of title, subject to the following conditions:
(a) This retention of title shall be limited to items based on the processing, mixing or combination of goods supplied by us, to their full value, to the extent that we are their manufacturer. If this processing, mixing or combination of goods involves items supplied by a third party or parties, we shall acquire joint title to the resulting processed, mixed or combined items in proportion to their corresponding invoiced values. The resulting item or items shall be covered in all other respects by the conditions corresponding to goods delivered subject to retention of title.
(b) The buyer hereby cedes to us as security all third-party claims arising from the resale of the goods or of items resulting from them, or – if third-party retention of title is involved – all claims corresponding to our proportional retention of joint title as defined in the above section. We hereby accept this cession. The buyer’s obligations, as defined in section 2, also apply with respect to ceded claims.
(c) The buyer is jointly authorised, along with us, to enforce claims. We undertake not to enforce such claims if the buyer meets its payment obligations to us, does not fall into arrears with payment, and is not subject to insolvency proceedings or any other situation affecting its ability to meet its payment obligations. If this does occur, we may demand that the buyer supplies us with all applicable information regarding ceded claims and the corresponding debtors, along with all the documentation required to enforce such ceded (third-party) claims.
(d) If the realisable value of securities exceeds that of our claims by more than 10%, we shall, at the buyer’s request and our discretion, release securities of the corresponding value.
Clause 8: Characteristics of timber
(1) Timber is a natural product, so its individual natural properties, differences and characteristics should always be taken into account. The buyer should in particular, when purchasing and processing timber, take into account its biological, physical and chemical properties.
(2) Unless otherwise agreed, the goods supplied shall be made from fresh-cut round timber. An agreed moisture level with respect to the wood shall be regarded as an approximate target figure, subject to the usual tolerances. The technical drying process is subject to the agreed level of moisture at the moment of removal from the drying kiln.
(3) The range of natural colours, structures and other differentiating factors within each type of wood is an intrinsic part of timber as a natural product, and cannot be used as a basis for complaints or liability claims.
(4) The buyer should seek expert advice as required.
Clause 9: Claims for defects on the buyer's part
(1) The buyer’s rights regarding material and legal defects shall be subject, unless otherwise specified hereinafter, to the relevant legislative provisions. The special legal provisions of articles 478 and 479 of the German Civil Code (BGB), covering the delivery of goods to the end-consumer and supplier recourse, shall in any case apply in full.
(2) Our liability for defects shall essentially be based on the quality of goods as defined in the agreement. In the absence of such an agreement, the relevant DIN and EN standards shall apply. Declarations of conformity and CE marks do not constitute independent warranties in their own right. The risks of suitability and use lie with the buyer.
(3) If quality has not been agreed on, the relevant legislation shall be used to determine whether or not a defect has arisen (BGB, art. 434, sect.1, subsections 2 and 3). However, we do not assume any liability for public statements (e.g. advertising claims) made by the manufacturer or other third parties.
(4) The buyer’s claims for defects require that it has complied with its statutory duties of investigation and notification (German commercial code (HGB), articles 377 and 381)). If a defect appears during the investigation or later, we must be informed of it immediately and in writing. Notification shall be deemed to be immediate if it is issued within two weeks. The timely despatch of notification is sufficient for the deadline to be observed. Irrespective of its duty to examine and report, the buyer must issue written notice of obvious defects (including incorrect and short delivery) within two weeks of delivery. The timely despatch of notification is sufficient for the deadline to be observed. If the buyer fails to investigate and/or report defects in the proper manner, we shall not be liable for such defects.
Reference is also made to the Tegernsee standards in this respect.
(5) If the buyer finds defects in delivered goods, the buyer shall not dispose of them (i.e. they must not be divided, resold or further processed) until an agreement has been reached on the handling of the complaint, or until evidence-securing procedures have been carried out at the buyer’s registered place of business by an expert appointed by the Chamber of Industry and Commerce.
(6) If a delivered item is defective, the buyer may initially demand rectification, at its discretion, in the shape of elimination of the defect (rectification) or delivery of a defect-free item (replacement). If the buyer does not declare which of the two rights it wishes to exercise, we may set a reasonable time limit in which to do so. If the buyer still fails to express its choice upon expiry of the time limit, we shall proceed at our discretion.
(7) We shall be entitled to carry out rectification of defects subject to payment, on the part of the buyer, of the purchase-price due. The buyer shall however be entitled to retain, in accordance with the nature of the defect concerned, a proportional part of the corresponding purchase price.
(8) The buyer must grant us the time and opportunity required to rectify such a situation attributable to us, with special reference but not limited to the testing of the goods giving rise to the claim. In the event of a replacement being supplied, the buyer must, in accordance with legal requirements, return the defective item to us. Rectification shall include neither the removal of the defective item nor the installation of its defect-free replacement, unless we originally undertook to carry out installation.
(9) The costs and expenses arising from inspection and rectification tasks, with particular reference to transport, shipping, labour and material costs (but not the costs of removal/installation), shall be borne by us if a defect is actually found to exist. However, if a demand on the part of the buyer to rectify a defect is found to be unjustified, we shall be entitled to claim the corresponding costs from the buyer.
(10) The buyer may only act unilaterally, and then claim against us for the resulting costs, in order to remedy defects in urgent cases where operational safety may be seriously affected, or in order to prevent major loss or damage. We must be informed immediately or in advance, if possible, of such unilateral action. The right to take unilateral action shall not apply if we are entitled by law to refuse to rectify or replace the corresponding item.
(11) If rectification fails, or if a deadline established by the buyer for rectification expires without result, or is not required by the corresponding legislation, the buyer may withdraw from the contract of sale or reduce the purchase price. The presence of a minor fault shall however not give rise to any right to withdraw.
(12) Claims by the buyer for loss and damage and/or for expenses incurred exist only to the extent defined in clause 10, and are otherwise excluded.
Clause 10: Further liability
(1) Unless otherwise determined in these GCC, we shall only be liable for loss or damage relating to infringement of contractual and non-contractual conditions to the extent stipulated by law.
(2) We shall be liable for loss and damage – regardless of the legal basis – in the event of intent or gross negligence. In cases of simple negligence, we shall only be liable
a) for loss and damage arising from death, injury or harm to health,
b) for loss and damage arising from infringement of a major contractual condition (defined as an obligation on whose fulfilment the correct fulfilment of the agreement as a whole depends absolutely and upon which the party to the agreement depends on a regular basis). Our liability shall however be limited in such cases to compensation for foreseeable loss or damage typical for claims of this type.
(3) The limitations on liability defined in sect. 2 shall not apply if and insofar as we are found to have wilfully concealed a defect or issued a guarantee regarding the quality of the item concerned. The same shall apply to claims made by the buyer under product liability law.
(4) In the event of an infringement that does not constitute a defect, the buyer may only withdraw or give notice to do so if such an infringement is attributable to us. A free right to termination on the part of the buyer (with particular reference to BGB, articles 651 and 649) is excluded. The corresponding statutory requirements and legal provisions shall otherwise apply.
Clause 11: Limitation
(1) In contrast to BGB, article 438, section 1, subsection 3, claims arising from material and legal defects shall expire one year after delivery. If acceptance is agreed, this period shall be counted from the moment of acceptance.
(2) However, if the item is employed as building material as part of a building structure in the normal way, and its use results in a material defect, the law (BGB, art. 438, sect. 1, subsection 2) establishes that the warranty shall expire five years from the moment of delivery. This does not affect the special legal provisions concerning third-party in rem claims (BGB, art. 438, sect. 1, subsection 1), fraudulent intent (art. 438, sect. 3) or supplier’s claims arising from delivery to the end-user (art. 479).
(3) The above commercial-law time limits shall also apply to contractual and non-contractual claims for loss or damage on the part of the buyer arising from a defect in the goods, unless application of the normal legal time-limit (BGB, articles 195 and 199) leads in individual cases to the observance of a shorter period. The time limits established by German product-liability law (Produkthaftungsgesetz) shall in any case remain unaffected. Buyer claims for loss and damage shall be subject in all other respects to the legally-established time limits described in clause 10.
Clause 12: Applicable law and jurisdiction
(1) These GCC and the commercial relationship between us and the buyer shall be subject to the laws of the Federal Republic of Germany, to the absolute exclusion of all international legal and/or contractual provisions, with particular reference but not limited to the UN Convention on Contracts for the International Sale of Goods (CISG). The requirements and effects of retention of title defined in clause 7 shall however be subject to the laws in force at the place of use, if and insofar as the laws of Germany are inapplicable or unenforceable in the corresponding jurisdiction.
(2) If the buyer is a business within the meaning of the German Commercial Code (HGB), or a public legal entity or special organisation incorporated under public law, exclusive jurisdiction (including international jurisdiction) over all and any disputes that might arise from or in conjunction with the contractual relationship shall correspond to the courts and tribunals of our registered place of business in Aachen-Würselen (Germany). We shall however also be entitled to bring legal action in the jurisdiction generally corresponding to the buyer’s registered place of business.