General Terms and Conditions of Delivery and Payment for the Timber Trade, Solely Applicable for Commercial Business
Last updated: 1 January 2019
1.1. The “Terms and Conditions” set out below and referred to as “T&Cs” apply to all contracts, supplies and other services used in business transactions among merchants within the meaning of Sections 2 et seq. of the German Commercial Code (hereinafter “HGB”), entrepreneurs within the meaning of Section 14 of the German Civil Code (hereinafter “BGB”), legal persons governed by public law and/or special funds governed by public law (collectively termed hereinafter “Customers“). Deviating terms, especially customers’ conditions of purchase, are hereby rejected.
1.2. Insofar as the T&Cs set out below state nothing to the contrary, the practices governing transactions in the timber industry (Tegernsee Customs of 1985) shall be applicable. The Tegernsee Customs are practices in the trade with wood and wood products in accordance with Section 346 HGB. Customer is expected to be aware of the contents thereof, meaning that The Tegernsee Customs are only sent if explicitly requested to do so by Customer.
1.3. Only our T&Cs shall apply. Customer’s deviating, conflicting or additional General Terms and Conditions shall only be considered an integral part of the contract if, and to the extent that, Supplier of the T&Cs has expressly agreed to this in writing. This requirement for consent shall apply to all contracts concluded between both parties. Especially if consent has been given once in a current contract, Customer may not refer to this in future contracts. The requirement for consent shall also be applicable even if Supplier unconditionally renders agreed service to Customer in knowledge of Customer’s T&Cs.
1.4. In the context of an ongoing business relationship between merchants, the General Terms and Conditions of Delivery and Payment shall also be considered an integral part of the contract even if Supplier has not explicitly mentioned that they apply in a given case.
1.5. Where individual agreements have been made with Customer in specific instances (including ancillary agreements, additions and amendments), these shall take precedence over the T&Cs. As far as the content of such agreements is concerned, an agreement in writing or written confirmation on the provision shall be considered decisive, subject to proof to the contrary. This requirement shall also be met by transmission by fax, email or any other electronic form, whereby in the case of electronic transmission, a signature of the Supplier in addition to the confirmation is not necessary.
1.6. Legally relevant declarations and notifications that are submitted to Supplier by Customer after having signed the contract (in particular but not exhaustively, deadlines, notice of defect, termination of contract, claim for damages), must, at least, be provided in a text form (as governed by Section 126b BGB) to be valid.
2.1. The offers contained in Supplier’s catalogues and sales brochures as well as – unless explicitly stated as being binding – posted on the Internet are always understood to be non-binding and subject to change without notice. Consequently, these should always be considered as merely an invitation to submit an offer, geared towards the conclusion of the contract in question.
2.2. Orders shall only be considered to have been accepted if they have either been confirmed by Supplier or have been carried out immediately upon receipt of the order. Sub-clause 1.5 (sentence 2) shall apply as confirmation.
2.3. If, after signing the contract, Supplier becomes aware of facts which, according to due commercial judgement based on the principal of good faith (Section 242 BGB), lead to the conclusion that the claim to the purchase price is at risk due to Customer’s inability to pay, Supplier is entitled to request, at their own discretion, payment or the equivalent in securities from Customer, subject to the setting of a reasonable obligation. Factors within the meaning of the previous sentence are, particularly but not exhaustively, default in payment with regard to previous deliveries. Should Customer not comply with Supplier’s request, the latter may rescind the contract immediately. In this case, Supplier is entitled to request immediate payment of invoices for partial deliveries that have already been made.
3.1. Subject to correct and timely delivery by sub-suppliers.
3.2. The risk of accidental loss and accidental deterioration of the goods shall generally pass to Customer upon handover. This does not apply to sales by mail order. In this case, the risk of accidental loss and accidental deterioration of goods as well as the risk of delay shall be transferred when the goods are handed over to the freight forwarding company, the carrier, or other person or institution responsible for carrying out the shipment. If the dispatch is delayed at Customer’s request, the transfer of risk to them shall commence upon notification that the goods are ready for dispatch or upon receipt of the notification of readiness. In cases pertaining to sub-clause 3.2 sentence 3, Supplier can charge a storage fee of 1.0% of the invoice amount per month or part thereof, commencing seven (7) days after notice has been received regarding goods being ready for dispatch. The handover is the same as stated, even if Customer is in default of acceptance.
3.3. Delivery-free to construction site or warehouse shall mean delivery without unloading, and subject to the existence of an access road that can be used by a heavy truck. If the heavy truck leaves the accessible access route under Customer's instruction, the latter shall be liable for any damages that occur as a result. The unloading of the truck shall be carried out in an orderly manner and without delay, as is generally the custom in business transactions. Any waiting periods caused by Customer shall be billed to Customer.
3.4. Partial deliveries shall be permitted to the extent that is reasonable for Customer, provided that the entire delivery is made within the agreed delivery period.
3.5. The delivery deadline shall be agreed with Customer on an individual basis or shall be specified by Supplier at the time when the order is accepted. If no delivery deadline is specified, the delivery period shall be approximately six (6) weeks after the agreement has been signed.
3.6. Where binding delivery dates cannot be met for reasons beyond the control of Supplier (non-availability of the contractual service), Supplier will notify Customer without delay and, at the same time, inform Customer of the new expected delivery date. This shall not be longer than the original delivery period stated. If the service in question is still not available within the new designated delivery period, Supplier is entitled to rescind the contract, in part or in whole – limited to the part of the service that is not available; any money already transferred by Customer, for which Supplier is unable to render the aforementioned service, shall be reimbursed without delay. An example of non-availability of service within this context is, in particular, the late delivery by the respective sub-supplier, if neither Supplier nor their sub-supplier is at fault, or if the Supplier is not obliged to procure in individual cases.
3.7. In an instance where the delivery is delayed, Customer is obliged, upon Supplier’s request, to state within a reasonable time period whether they still wish to receive the service in question or whether they wish to rescind the contract due to the delay and/or claim for damages. In this respect, a period of five (5) working days shall be considered reasonable. Here, Customer shall be made aware that silence within the set deadline shall be considered equivalent to a declaration that they still insist that the service be rendered.
3.8. Customer’s rights in accordance with Clause 7 of these T&Cs and Supplier’s statutory rights not modified by these T&Cs, especially but not exclusively, in the event of exclusion of the obligation to provide services (e.g. due to the impossibility or unreasonableness of the service and/or subsequent performance) shall remain unaffected.
4.1. If nothing to the contrary has been agreed, Supplier’s pricing information (ex-warehouse, excl. statutory sales tax) shall apply, and the purchase price without deduction shall be due immediately upon receipt of goods. The pricing information is stated in euros, ex-works or ex-warehouse, excluding packaging.
4.2. For sales according to weight, the weight determined at the shipping point shall apply; for sales designated by number of units or cubic metres, the quantity determined during loading shall apply. Increases in freight costs, production costs as well as recently imposed congestion charges entitle Supplier to amend their prices as if Supplier was unaware of the respective increases or recently imposed congestion charges or should not have been aware of these at the time the contract was signed.
4.3. Where Supplier and Customer are both signed up to a Business-to-Business Direct Debit Scheme, it shall suffice for Customer to receive pre-notification of the pending direct debit amount and due date one day prior to the respective due date.
4.4. Supplier is entitled at any time – even within the framework of an ongoing business relationship – to carry out a delivery, in part or in whole, only against advance payment. A corresponding reservation must be declared by Supplier no later than the order confirmation.
4.5. In the event of default in payment, interest shall be charged at the respective bank rates for overdrafts, but at least the statutory default interest. Any individual agreements on discounts are invalid as long as Customer is in arrears with payment for services that have already been rendered. Individually agreed discount periods commence from the date of invoice.
4.6. Should Customer be sent a reminder (§ 286 (1) German Civil Code (BGB)) because payment is late, Supplier is entitled, after having sent the reminder, to either take back the goods or request that these be handed over. Furthermore, Supplier can prohibit the removal of the delivered goods. The return of goods, or request for them to be handed over, is equivalent to rescinding a contract, without the need to explicitly serve notice of termination.
4.7. Refusal of payment or withholding payment is not permitted if Customer knew about defects or other reasons for complaint at the time that the contract was signed. This also applies if Supplier was unaware of the defect owing to gross negligence, unless Supplier fraudulently concealed the defect or other reason for complaint, or assumed a guarantee for the quality of the goods.
Moreover, payment may only be withheld to a reasonable extent for defects or other reasons of complaint. In the event of a dispute, an expert appointed by Customer’s Chamber of Commerce and Industry will decide on the amount. The costs shall be borne by the parties in proportion to their loss or success.
4.8. Offsetting or retention is only possible with undisputed or legally established claims.
4.9. If it becomes apparent after signing the contract (e.g. but not conclusively, through an application for the commencement of insolvency proceedings) that Supplier’s entitlement to the purchase price is at risk due to Customer’s lack of ability to pay, Supplier is entitled to refuse performance in accordance with statutory provisions and, if necessary, after setting a reasonable deadline, entitled to rescind the contract (§ 321 German Civil Code). As regards contracts pertaining to the manufacture of non-fungible items (custom-made products), Supplier is immediately entitled to rescind the contract; moreover the statutory provisions regarding the ability to dispense with serving notice shall remain unaffected.
4.10. If a cheque is used to pay for the transaction, payment is only deemed to have been made if it has been successfully redeemed and after the withdrawal period has expired.
4.11. Bills of exchange are not accepted.
5.1. Wood is a natural product; its natural properties, deviations and characteristics must be observed at all times. Customer must, in particular, take into account its biological, physical and chemical properties when purchasing and using this product.
5.2. The range of natural colours, composition and other differences found in a particular type of wood is an integral part of the properties of wood as a natural product and does not constitute a cause for complaint or liability.
5.3. Customer is responsible for obtaining comprehensive information regarding the properties of the wood that is part of the contract. If necessary, Customer is to seek the advice of an external expert on this.
5.4. Furthermore, reference is made to Tegernsee Customs with regards to sub-clauses 5.1–5.3 of these T&Cs.
6.1. The properties of the goods, in particular but not exclusively, quality, grade and dimensions, are determined according to the agreements of the parties in question. All product descriptions that form part of the individual contract apply as an agreement on the quality of the goods; in this context, it makes no difference whether the product description comes from the manufacturer, supplier or customer. In the absence of an individual agreement, the applicable and pertinent DIN and EN standards shall apply. Declarations of conformity and CE markings do not constitute independent guarantees. Customer bears the risks associated with suitability and use of the rendered service.
6.2. Supplier is liable for defects within the meaning of § 434 BGB, as set out below: Customer shall inspect received goods regarding quantity and quality without delay. Any evident defect is to be notified to Supplier in writing within 14 calendar days. §§ 377, 381 HGB shall remain unaffected in the case of reciprocal, commercial transactions between merchants. Otherwise, reference is made to the Tegernsee Customs.
6.3. Should Customer discover a defect in the goods, he may not dispose of them. In particular, goods may not be divided, resold, processed further, destroyed, nor otherwise changed in any way until an agreement has been reached on the handling of the complaint or preservation of evidence has been carried out by an expert commissioned by the Chamber of Industry and Commerce located within the vicinity of Customer’s registered headquarters. In this respect, Customer hereby undertakes the careful safekeeping of goods free of charge. If Customer acts to the contrary, Customer shall be informed that the proportion of the goods that have been unlawfully disposed of shall be regarded as authorised in relation to the Supplier-Customer relationship.
6.4. As far as justified complaints are concerned, Supplier is entitled to determine the type of supplementary performance (delivery of replacement, rectification), taking into account the nature of the defect and Customer's legitimate interests. In this respect, § 275 BGB shall remain unaffected. Supplier is entitled to make any supplementary improvement dependent on Customer paying the purchase price due. Customer is entitled to retain a part of the purchase price that is reasonable in relation to the detected defect.
6.5. Customer’s right to the reduced price in accordance with §§ 437 No. 2 2. Alt., 441 BGB and/or §§ 634 No. 3 2. Alt., 638 BGB does not apply.
6.6. Any liability of the Supplier beyond the value of the goods is excluded. This shall not apply to Customer’s claims based on § 439 (3) BGB.
6.7. Customer shall give Supplier the time and opportunity required to rectify the defect, in particular to be in a position to hand over the goods that are the subject of the complaint for inspection purposes. In the event that the defective good(s) is/are replaced, Customer shall return the faulty item or defective part in line with statutory provisions. Only the defective part of the delivery is to be returned if it can be separated easily from the non-defective part and Customer otherwise adheres to the provisions governing the contract.
6.8. Claims for material defects become no longer legally enforceable after twelve (12) months. This shall not apply in instances where legislation prescribes longer deadlines, in particular concerning §§ 438 (1) No. 2 BGB (buildings and objects for buildings), 479 (1) (right of recourse) and 634a (1) No. 2 (construction defects) BGB.
6.9. Supplier shall be held liable for damages that did not occur to the delivered item only to the extent that the damaged occurred in a manner attributable to Supplier, or Supplier is responsible for this damage.
6.10. The place of fulfilment shall be Supplier’s principal registered office.
7.1. Further to and with reference to Clause 6, the following sub-clause 7.2. shall apply:
7.2. Customer shall notify Supplier without undue delay after becoming aware of a guarantee case with a consumer. Should Customer intend to refuse supplementary performance, Supplier reserves the right that consumer rectifies the situation themselves.
Customer shall, without delay, inform Supplier that they will refuse the pending supplementary performance before informing the consumer of the same. Should Customer fail to comply with the aforementioned obligation to notify, Customer shall be liable (to Supplier) for any differential damage due to the fact that the consumer has commissioned an external party to remedy the defect(s). Supplier shall bear the burden of proof to demonstrate the amount of the differential damage. First and foremost, they must demonstrate that if the work had been carried out by themselves, the claim asserted by Customer for reimbursement of the necessary expenses would not have been achieved in terms of the amount. The difference must be quantified. The aforementioned procedure applies, in particular but not exclusively, to cases where Supplier can be held liable within the scope of Supplier’s recourse, without being able to claim against their sub-supplier.
8.1. Unless otherwise stated in these T&Cs, including the following provisions, Supplier shall be liable for any breach of contractual and/or non-contractual obligations under the law.
8.2. Supplier shall be liable for damages – for whatever legal reason – within the framework of fault-liability in the event of intent and gross negligence. Supplier is liable for minor negligence, subject to a milder statutory standard of liability (e.g. for diligence in own affairs),
a) for damage resulting from injury to life, physical injury or damage to health, and
b) for damages incurred due to a significant breach of a major contractual duty (i.e. a breach, the fulfilment of which is essential for the proper execution of the contract and on whose compliance Customer regularly trusts and may trust);
for liability arising from Clauses 6 and 7, Supplier’s liability shall be limited to compensation for any damage incurred that was foreseeable and typical with regards to the relevant contract.
8.3. The limitations of liability resulting from sub-clause 8.2 shall also apply to breaches of duty by or for the benefit of persons, the culpability of which Supplier is responsible for and/or these are attributable to Supplier in accordance with legal regulations. Sub-clause 8.2 shall not apply insofar as a defect has been fraudulently concealed if a guarantee for the quality of an item has been given and/or Customer has claims under the Product Liability Act.
8.4. As regards a breach of duty that does not constitute a defect, Customer may only rescind the contract or serve notice if Supplier is responsible for the breach of duty. The free right of termination by Customer (in particular but not exclusively, in accordance with §§ 651, 649 BGB) is excluded. Furthermore, legal regulations and legal consequences shall apply.
8.5. There are risks with sending information and documents by electronic means, especially emails. It cannot be ruled out that third parties gain access to the data, take note of it and change it, or that data might be falsified, incomplete, delayed or not land in the recipient’s in tray at all. Moreover, electronic messages may contain viruses or other components, which could disrupt or damage another computer system. As far as the current channels of communication are concerned, Customer is aware of these risks but, nevertheless, agrees to information and documents being sent electronically in unencrypted form to them and to third parties involved.
8.6. The aforementioned limitations to liability set out in sub-clause 8.1–8.4 shall not apply to data protection claims.
9.1. Contrary to § 438 (1) No. 3 BGB, the general period for claims pertaining to material defects and defects in title is limited to one (1) year from delivery. If goods have been accepted, the limitation period commences upon acceptance of goods.
9.2. If the goods are a building or an item that has been used for a building in accordance with its normal use and has caused it to be defective (construction material), the statutory period of limitation is five (5) years from delivery (§ 438 (1) No. 2 BGB).
Further special statutory provisions governing the statute of limitations, which cannot be deviated from on an individual basis, shall remain unaffected (in particular but not exclusively, § 438 (1) No. 1, (3), §§ 444, 479 BGB).
9.3. The aforementioned limitation periods concerning the sale of goods law shall also apply to Customer’s contractual and non-contractual compensation claims based on defects in the goods, unless the application of the standard statutory limitation period (§§ 195, 199 BGB) would, in individual cases, result in a shorter limitation period. Customer’s compensation claims in accordance with sub-clause.
8.2. Sentence 1 and sentence 2 a) and in line with the Product Liability Act become time-barred in line with applicable statutory provisions.
10.1. Supplier shall retain ownership of the goods until full payment of the purchase price has been received. In the case of goods that Customer purchases from Supplier during the course of an ongoing business relationship, Supplier shall retain ownership until all receivables from the business relationship have been paid, including those arising in the future, and also from contracts signed at the same time or later. This shall also apply if Supplier’s specific or all receivables have been included in a current invoice and the balance has been drawn and accepted.
10.2. If Customer’s goods subject to retention of title are processed to create a new movable item, the processing is carried out to the benefit of Supplier, without Supplier being obligated as a result; the new item becomes the property of Supplier. If Supplier’s item is processed along with goods that are not Supplier’s property, Supplier shall acquire co-ownership of the new product, proportionate to the value of the reserved goods to the other goods forming the new item at the time of processing. If the goods subject to retention of title are connected, mixed or combined with products that do not belong to Supplier in accordance with §§ 947, 948 BGB, Supplier shall become co-owner in line with statutory provisions. If Customer acquires sole ownership by connecting, combining or mixing, Customer shall hereby transfer co-ownership to Supplier according to the ratio of goods subject to retention of title to the new goods value produced as a result of connecting, mixing or combining. In these cases, Customer shall store the item that is the owned or co-owned by Supplier, which is also considered to be reserved goods within the meaning of the aforementioned conditions, free of charge until it is sold.
10.3. Should the goods subject to retention of title be sold alone or sold along with goods that Supplier does not co-own, Customer shall hereby assign any claims arising from the selling of the goods to the value of the reserved goods, including all ancillary rights and in priority to the rest; Supplier accepts this assignment. The value of the goods subject to retention of title is the amount on the vendor’s invoice, which, nevertheless, is disregarded insofar as the rights of third parties conflict with it. Where Supplier is co-owner of goods subject to retention of title, the assignment of the receivables extends to the amount that corresponds to the Supplier’s share of the co-ownership.
10.4. Should Customer’s goods subject to retention of title be installed as an essential component in an immovable object, a ship, ship structure or aeroplane (a) of a third party or (b) of Customer, Customer shall assign to (a) the third party or (b) the purchaser in the event of a sale, any receivables that arise and can be assigned to remuneration in the amount equal to the value of the reserved goods against the amount of the value of goods subject to retention of title with all ancillary rights, including such a right of lien in rem, with priority over the rest; Supplier accepts this assignment of debt. Sub-clause 10.3. sentences 2 and 3 shall apply accordingly.
10.5. Customer is only entitled to sell, use or integrate the goods subject to retention of title in the customary and orderly course of business and only with the proviso that the receivables are actually passed over to Supplier within the meaning of sub-clauses 10.3 or 10.4. Customer is not entitled to dispose of goods subject to retention of title that conflict with this purpose of the regulation, especially but not exclusively, pledging or assigning by way of security.
10.6. The extended retention of title shall not apply to contracts where payment is made in advance.
10.7. Supplier shall authorise Customer to collect the assigned receivables in line with sub-clauses 10.3. and 10.4., subject to revocation. Supplier undertakes not to exercise the right to withdraw the authorisation and not to make use of their own direct debit authorisation, as long as Customer fulfils their payment obligations against third parties. Upon Supplier’s request, Customer is to let the debtor know about the assigned receivables, taking into account the regulations governing data privacy. If the condition for revocation of authorisation is met, Customer must notify their debtors of the assignment at the request of Supplier; in these cases, Supplier is also authorised, at any time, to notify the debtors of the assignment themselves.
10.8. The right to resell, use or install the reserved goods and/or the authorisation to collect assigned receivables shall expire upon suspension of payments and/or application for the opening of insolvency proceedings in respect of Customer’s assets. The provisions of the German Insolvency Code (InsO) shall remain unaffected.
10.9. Where the value of the collateral granted exceeds the receivables (possibly reduced by advance payments and/or partial payments) by more than 20%, Supplier undertakes, at their choice, to retransfer or release the goods immediately after determining the excess security.
11.1. Return of goods that were neither initiated by Supplier nor as a result of defective goods, shall only release Customer from the (pro rata) payment of the purchase price if Supplier explicitly consents to the return. Consent must be given as stated in sub-clause 1.6. Customer’s return shipments shall only be accepted by Supplier, subject to an inspection.
11.2. Returns may only be processed by Supplier if shipment is accompanied by corresponding documents such as a copy of the invoice or a copy of the delivery note.
11.3. Returns are sent at Customer’s own risk and costs are also borne by Customer, who bears the risk of accidental loss. If Supplier takes over the return transport of goods upon Customer’s request or where the return shipment takes place from somewhere else other than the place of fulfilment, the aforementioned regulation shall also apply. This also applies if the costs of delivery to Customer were originally borne by Supplier.
11.4. Where Supplier agrees to the return of sellable goods, Supplier is entitled to bill Customer a flat rate for the cost of returning the items, of 15 % of the net value of the goods, plus freight charges.
12.1. The place of fulfilment and jurisdiction for deliveries and payments (including cheque claims) as well as for all disputes arising between the parties, insofar as Customer is a merchant within the meaning of §§ 2ff. HGB, entrepreneur in accordance with § 14 of BGB, legal persons governed by public law and/or special funds governed by public law, is Supplier’s registered principal office. In individual cases, Supplier reserves the right to take legal action at the place of performance of the delivery obligation in accordance with these T&Cs or an individual agreement that takes precedence or at Customer’s general place of jurisdiction. Overriding legal regulations, especially but not exclusively, regarding exclusive jurisdiction shall remain unaffected.
12.2. The relations between the contractual parties is governed by non-unified German law, namely HGB/BGB. The articles of the CISG (United Nations Convention on Contracts for the International Sale of Goods) of 11 April 1980 shall not apply.
12.3. Customer is made aware that Supplier collects, processes and uses the personal data gleaned within the context of the business relationship in accordance with the Federal Data Protection Act (Bundesdatenschutzgesetz, version dated June 30, 2017 (BGBl. I page 2097), entry into force according to Article 8 (1) of this law on may 25, 2018).
12.4. Personal data is permanently stored in a central file system. Customer has a right to access their personal data (Art. 15 GDPR), as well as rectification (Art. 16 GDPR), erasure (Art. 17 GDPR) or restriction of processing (Art. 18 GDPR) or a right to object to the processing (Art. 21 GDPR) and the right to data portability (Art. 20 GDPR).
12.5. The German version of these T&Cs is authoritative and shall apply to any disputes between Supplier and Customer.