General Terms and Conditions

General delivery and payment terms for the timber trade (ALZ) for exclusive use in business transactions

As of: January 1, 2018

1. Scope

1.1 Unless expressly agreed otherwise, the following "General Delivery and Payment Terms" (ALZ) shall apply – in addition to customary practices in the timber trade (Tegernseer customs) – for all contracts, deliveries, and other services within business dealings with entrepreneurs as defined by § 14 BGB, legal entities under public law, or public-law special assets (collectively referred to as "customers").

1.2 Our ALZ apply exclusively. Deviating, contradictory, or supplementary general terms and conditions of the buyer shall only become part of the contract to the extent that we have expressly agreed to their applicability. This requirement for agreement applies in any case, for example, even if we provide the service unconditionally in knowledge of the buyer's GTC.

1.3 In the context of an ongoing business relationship between merchants, the ALZ shall also become part of the contract if the seller has not expressly pointed out their inclusion in the individual case.

1.4 Individually agreed provisions with the buyer (including ancillary agreements, supplements, and changes) shall always take precedence over these ALZ. For the content of such agreements, a written contract or our written confirmation shall be decisive, subject to contrary evidence.

1.5 Legally significant declarations and notifications that the buyer must make to us after the conclusion of the contract (e.g., setting deadlines, notification of defects, declaration of withdrawal or reduction) require written form to be effective.

2. Offers and Contract Conclusion

2.1 The offers contained in the seller's catalogs and sales documents, as well as – unless explicitly marked as binding – on the Internet are always non-binding and subject to change, i.e., understood only as an invitation to submit an offer.

2.2 Orders are considered accepted when they are either confirmed by the seller or executed immediately after receipt of the order.

2.3 If facts become known to the seller after the conclusion of the contract, particularly payment delays regarding earlier deliveries, that suggest, in accordance with sound commercial discretion, that the claim for the purchase price is jeopardized due to the buyer's lack of ability to perform, the seller is entitled to demand either payment on delivery or corresponding securities from the buyer, setting a reasonable deadline, and to withdraw from the contract in case of refusal, whereby invoices for already made partial deliveries become immediately due.

3. Delivery, Transfer of Risk, and Delay

3.1 Proper and timely self-supply is reserved.

3.2 The risk of accidental loss and accidental deterioration of the goods passes to the buyer no later than upon delivery. In the case of a shipment purchase, however, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay passes already with the delivery of the goods to the carrier, freight forwarder, or other designated person or institution for the execution of the shipment.

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 is approximately three (3) weeks from the conclusion of the contract.

3.5 If we cannot meet binding delivery periods for reasons for which we are not responsible (non-availability of the service), we will inform the buyer immediately and at the same time communicate the anticipated new delivery period. If the service is also unavailable within the new delivery period, we are entitled to withdraw from the contract in whole or in part; any already rendered counter-performance by the buyer will be refunded immediately. A case of non-availability of service in this sense applies particularly to late self-supply by our supplier, for which neither we nor our supplier are at fault or in case we are not obligated to procure in the individual case.

3.6 In the event of a delivery delay, the buyer is obliged to declare within a reasonable period, at the seller's request, whether he still insists on delivery or withdraws from the contract due to the delay and/or demands compensation instead of performance.

3.7 If we fall into delay of delivery, the buyer may demand flat-rate compensation for his delay damage. The compensation amounts to 0.5% of the net price (delivery value) for each completed calendar week of delay, but at most 5% of the delivery value of the delayed goods. We reserve the right to prove that the buyer incurred no damage at all or only a considerably lower damage than the above-mentioned flat rate.

3.8 The rights of the buyer pursuant to section 7 of these ALZ and our statutory rights, especially in the event of a cessation of the performance obligation (e.g., due to impossibility or unreasonableness of the performance and/or supplementary performance), remain unaffected.

4. Prices and Payment Terms

4.1 Unless otherwise agreed, our current prices at the time of the conclusion of the contract shall apply, and these are ex warehouse (plus statutory VAT) and the purchase price is due immediately upon receipt of the goods without any deductions.

4.2 If buyers and sellers participate in a company direct debit procedure, it suffices for the advance information (Prenotification) regarding the direct debit amount and due date to reach the buyer one day before the due date.

4.3 We are entitled, even within an ongoing business relationship, to carry out a delivery entirely or partially only against advance payment. We will declare an appropriate reservation at the latest with the order confirmation.

4.4 In case of payment delay, interest at the respective bank rates for overdrafts will be charged, but at least the statutory default interest. Any agreed discounts will not be granted as long as the buyer is in delay with the payment for previous deliveries. Discount periods begin to run from the invoice date.

4.5 If the buyer falls into payment delay through reminder (§ 286 Abs. 1 BGB) or does not redeem a bill upon maturity, the seller shall be entitled to reclaim or demand the return of the goods after prior reminder. The seller may also prohibit the removal of the delivered goods. The return is considered as a withdrawal from the contract.

4.6 A refusal or retention of payment is excluded if the buyer was aware of the defect or other objection grounds at the time of the conclusion of the contract. This also applies if he became unaware of it due to gross negligence, unless the seller has fraudulently concealed the defect or other objection grounds or has assumed a guarantee for the quality of the goods.

Furthermore, payment for defects or other complaints may only be withheld to a reasonable extent. In the event of a dispute, the amount is determined by an expert named by the chamber of commerce and industry of the buyer's location. This expert shall also decide on the distribution of costs of his involvement in a reasonable discretion.

4.7 A set-off or retention is only possible with undisputed or legally established claims.

4.8 If it becomes apparent after the conclusion of the contract (e.g., due to an application for the opening of insolvency proceedings) that our claim for the purchase price is jeopardized due to the buyer's lack of ability to perform, we are entitled to refuse performance in accordance with the statutory provisions and – if necessary, after setting a deadline – to withdraw from the contract (§ 321 BGB). In the case of contracts for the manufacture of non-representable items (custom-made items), we may declare the withdrawal immediately; the statutory provisions regarding the dispensability of setting a deadline remain unaffected.

5. Properties of the Wood

5.1 Wood is a natural product; its natural properties, deviations, and characteristics must therefore always be taken into account. In particular, the buyer must consider its biological, physical, and chemical properties when purchasing and using.

5.2 The range of natural color, structural, and other differences within a wood species is part of the properties of the natural product wood and does not constitute a reason for complaint or liability.

5.3 The buyer may need to seek professional advice.

6. Notification of Defects, Warranty, and Liability

6.1 The properties of the goods, especially quality, type, and dimensions, are determined by the agreements of the parties. All product descriptions that are the subject of the individual contract are considered as an agreement on the quality of the goods; it does not matter whether the product description originates from the buyer, the manufacturer, or us. If such an agreement is lacking, applicable relevant DIN and EN standards shall apply. Declarations of conformity and CE markings do not constitute independent guarantees. Suitability and application risks lie with the buyer.

6.2 The seller is only liable for defects within the meaning of § 434 BGB as follows:
The buyer must examine the received goods immediately for quantity and quality. Obvious and hidden defects must be reported in writing to the seller within 14 days of becoming aware. In mutual trade transactions among merchants, §§ 377, 381 HGB remain unaffected. Additionally, reference is made to the Tegernseer customs.

6.3 If the buyer identifies defects in the goods, he may not dispose of them, i.e., they may not be divided, resold, or processed further until an agreement on the handling of the complaint has been reached or a proof securing procedure has been carried out by an expert appointed by the chamber of commerce and industry at the buyer's location.

6.4 In case of justified complaints, the seller is entitled, taking into account the type of defect and the justified interests of the buyer, to determine the type of supplementary performance (replacement delivery, rectification). We are entitled to make the owed supplementary performance dependent on the buyer's payment of the purchase price due. The buyer is, however, entitled to withhold a portion of the purchase price that is proportionate to the defect.

6.5 The buyer must inform us as soon as possible of any warranty case occurring with a consumer.

6.6 The buyer must give us the necessary time and opportunity for the owed supplementary performance, in particular to hand over the disputed goods for inspection purposes. In the case of replacement delivery, the buyer must return the defective item to us in accordance with the statutory provisions.

6.7 Claims for material defects expire after 12 months. This does not apply to the extent that the law prescribes longer periods according to §§ 438 Abs. 1 Nr. 2 (buildings and items for buildings), 479 Abs. 1 (right of recourse), and 634a Abs. 1 Nr. 2 (construction defects) BGB.

6.8 The place of performance of the supplementary performance is at the seller's registered office.

6.9 If the defectively delivered goods, which were concealed at the time of transfer of risk to the buyer, are integrated into another item or attached to another item in accordance with their nature and purpose, the seller bears the necessary expenses for removing the defective goods and the installation or attachment of the repaired or newly delivered item as well as the necessary expenses for supplementary performance for transportation, travel, labor, and material costs.

7. General Limitation of Liability

7.1 Unless otherwise provided in these ALZ, including the following provisions, we are liable for violations of contractual and non-contractual obligations according to the statutory provisions.

7.2 We are liable for damages – regardless of the legal basis – within the framework of fault liability in cases of intent and gross negligence. In cases of simple negligence, we are liable subject to a milder liability standard according to the statutory provisions (e.g., for care in our own affairs) only a) for damages resulting from injury to life, body, or health and b) for damages arising from a non-negligible breach of an essential contractual obligation (an obligation whose fulfillment enables the proper execution of the contract in the first place and on whose adherence 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 arising from section 7.2 also apply in the event of breaches of duty by or in favor of persons whose fault we are liable for under 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 Due to a breach of duty that does not consist of a defect, the buyer may only withdraw or terminate if we are responsible for the breach. The buyer's right to terminate freely (especially according to §§ 651, 649 BGB) is excluded. Otherwise, the statutory prerequisites and legal consequences apply.

8. Statute of Limitations

8.1 Deviating from § 438 Abs. 1 Nr. 3 BGB, the general limitation period for claims arising from material and legal defects is one (1) year from delivery. If an acceptance is agreed, the limitation period begins with the acceptance.

8.2 If the goods are a building or a thing that has been used in accordance with its usual purpose for a building and caused its defect (construction material), the limitation period according to the statutory regulation is five (5) years from delivery (§ 438 Abs. 1 Nr. 2 BGB). Other statutory special regulations regarding limitation periods (especially § 438 Abs. 1 Nr. 1, Abs. 3, §§ 444, 479 BGB) remain unaffected.

8.3 The aforementioned limitation periods of purchase law also apply to contractual and non-contractual claims for damages of the buyer, which are based on a defect in the goods, unless the application of the regular statutory limitation (§§ 195, 199 BGB) would lead to a shorter limitation in the individual case. Claims for damages of the buyer according to section 7.2 sentences 1 and 2 a) and under the Product Liability Act, however, expire according to statutory provisions.

9. Retention of Title

9.1 The seller retains ownership of the goods until full payment of the purchase price.

9.2 If the reserved goods are processed by the buyer into a new movable item, the processing is carried out for the seller without the seller being obliged to do so; the new item becomes the property of the seller. In the case of processing together with goods not belonging to the seller, the seller acquires co-ownership of the new item in proportion to the value of the reserved goods to the other goods at the time of processing. If the reserved goods are connected, mixed, or blended with goods not owned by the seller according to §§ 947, 948 BGB, the seller becomes co-owner according to the statutory provisions. If the buyer acquires sole ownership through connection, mixing, or blending, he hereby transfers co-ownership to the seller in proportion to the value of the reserved goods to the other goods at the time of connection, mixing, or blending. In such cases, the buyer shall store the item owned or co-owned by the seller, which is also considered reserved goods in the sense of the preceding provisions, free of charge.

9.3 If reserved goods are sold alone or together with goods not owned by the seller, the buyer hereby assigns the claims arising from the resale in the amount of the value of the reserved goods with all ancillary rights and priority over the remainder; the seller accepts the assignment. The value of the reserved goods is the invoice amount of the seller, which, however, is disregarded to the extent that third-party rights stand in its way. If the resold reserved goods are in co-ownership of the seller, the assignment of the claims extends to the amount corresponding to the seller's share in the co-ownership.

9.4 If reserved goods are incorporated as an essential part into an immovable property (a) of a third party or (b) of the buyer, the buyer hereby assigns the claims arising from (a) the third party or (b) the acquirer in the event of a sale for compensation in the amount of the value of the reserved goods with all ancillary rights, including any right to grant a security interest, with priority over the remainder; the seller accepts the assignment. Section 9.3, sentences 2 and 3 apply accordingly.

9.5 The buyer is only entitled to resell, use, or incorporate the reserved goods in the ordinary course of business and only on the condition that the claims under section 9.3 or 9.4 actually pass to the seller. The buyer is not entitled to any other disposal of the reserved goods, in particular pledging or security transfer.

9.6 The seller authorizes the buyer, subject to revocation, to collect the claims assigned under sections 9.3 and 9.4. The seller will not exercise his right to collect as long as the buyer fulfills his payment obligations, also towards 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 With cessation of payments and/or application for opening of insolvency proceedings, the right to resale, use, or incorporation of the reserved goods or the authorization to collect the assigned claims shall expire. This does not apply to the rights of the insolvency administrator.

9.8 If the value of the granted securities exceeds the claims (possibly reduced by advance and partial payments) by more than 20%, the seller is obliged to return or release them at his discretion.

10. Final Provisions

10.1 The place of fulfillment and jurisdiction for deliveries and payments (including actions for checks and bills of exchange) as well as all disputes arising between the parties shall be, provided that the buyer is a merchant, a legal entity under public law, or a public-law special asset, the seller's headquarters. However, we are also entitled in all cases to bring an action at the place of fulfillment of the delivery obligation according to these ALZ or a priority individual agreement or at the general jurisdiction of the buyer. Priority statutory provisions, particularly concerning exclusive jurisdictions, remain unaffected.

10.2 The relationships between the contracting parties are governed exclusively by the law applicable in the Federal Republic of Germany, excluding UN sales law.

10.3 The buyer is hereby informed that the seller collects, processes, and uses the personal data required for business processing in accordance with the provisions of applicable European and German data protection laws.

10.4 Should any provision of these ALZ be invalid (e.g., unlawful or otherwise unenforceable), this invalidity does not affect the validity of the remaining provisions. The invalid provision shall be replaced by a legally valid provision mutually agreed upon, which has similar and valid economic and legal effects. The same applies to any gaps or omissions in the ALZ.

Original version from the General Association of the German Timber Trade e.V., Wiesbaden, registered with the Federal Cartel Office on 22.03.2002 according to § 38 Abs. 2, Nr. 3 GWB and published in the Federal Gazette No. 80 on 27.04.2002.

Source: GD Holz