Terms of sale, delivery and payment
General Terms and Conditions (AGB's)
Scope of application
- All our deliveries and services are provided exclusively on the basis of the following terms and conditions. In addition, the relevant customary practice for the trade in logs, sawn timber and semi-finished timber products shall apply, in particular the "Tegernsee Customs" with their appendices and annex, unless otherwise stipulated in the following conditions.
- The Buyer's terms and conditions of purchase shall not be binding on us if they conflict with these GTC, even if we have not expressly objected to them.
Conclusion of contract
- Our offers are always subject to change. We reserve the right to prior sale.
- Any amendment or addition to these terms and conditions must be made in writing to be effective.
Prices, calculation of broker commissions
- Depending on the agreement, the prices are quoted free to place of departure of the goods, delivery plant or forest or carriage paid to the receiving station.
- If taxes, customs duties, freight charges, wage and salary tariffs or the like are increased between conclusion and fulfillment of the contract, we reserve the right to increase the price accordingly if a period of more than four months has been agreed between conclusion and fulfillment.
- If a broker's commission is agreed, this shall be calculated from the ex-works prices. Additional costs such as freight and customs duties are not taken into account when calculating the broker's commission.
Delivery, transfer of risk, delivery disruptions
- The risk shall pass to the buyer as soon as the goods are made available, at the latest as soon as they are handed over to the carrier or forwarding agent or leave the factory, forest or warehouse. This also applies to carriage paid shipping.
- Depending on the agreement, shipment shall be ex works or carriage paid. In the case of carriage paid delivery, the choice of means of transportation shall be at our discretion.
- If a freight charge has been agreed, the freight costs shall be paid by the buyer without discount.
- We are entitled to make partial deliveries at any time.
- If non-compliance with delivery deadlines is due to force majeure, e.g. mobilization, war, riot or similar events, e.g. strike, lockout, the deadlines shall be extended accordingly. If the impeding event lasts longer than two months, we are entitled to withdraw from the contract.
- If we are in default, the buyer may, in the event of substantiation of damage, claim compensation for each completed week of delay of 0.5%, but no more than a total of 5% of the delivery value affected in this respect, as liquidated damages. Any further claims for damages by the Buyer due to delayed delivery and claims for damages in lieu of performance due to delayed delivery which exceed the liquidated damages shall be excluded in all cases of delayed delivery, even after the expiry of a period set for subsequent delivery. This shall not apply in cases of mandatory liability based on intent, gross negligence or injury to life, limb or health. The buyer may only withdraw from the contract if we are responsible for the delay in delivery.
- Upon request, the buyer is obliged to declare within a reasonable period of time whether he will withdraw from the contract due to the delay in delivery or insist on delivery.
- Payments are to be made in cash within 30 days of the invoice date without deduction, even in the case of partial deliveries, unless otherwise agreed. The invoice shall be issued on the date of loading.
- We only accept checks and bills of exchange on account of payment, bills of exchange only by special agreement. Discount and bill charges are to be paid by the buyer. We are not liable for the timely presentation of bills of exchange and checks.
- In the event of late payment, we shall be entitled to charge interest at a rate of 9% points above the prime rate. If we can demand higher interest for another legal reason, we are entitled to claim higher interest.
- In the event of non-compliance with the payment deadlines and other terms of payment, suspension of payment, application for the opening of insolvency proceedings with regard to the assets of the buyer, the occurrence or discovery of other circumstances which are likely to reduce the buyer's creditworthiness, all our claims against the buyer shall become due immediately, in the case of bills of exchange also irrespective of the term; we shall then be entitled, in addition to charging interest in accordance with Clause 3, to make outstanding deliveries, also from other contracts, only against advance payment or provision of security and, if these are not made, to withdraw from the contract or to demand compensation instead of performance, without prejudice to further rights in accordance with Clause VI No.8.
- Our travelers, representatives or employees working in the field are not entitled to accept payments without express written authorization.
- Offsetting is only permitted with counterclaims that are not disputed by us or have been legally established.
Retention of title
- The delivered goods shall remain our property (reserved goods) until the purchase price has been paid in full and all claims arising from the business relationship up to the time of delivery and any claims still arising in connection with the object of purchase have been settled.
- The retention of title shall continue to apply to merchants, legal entities under public law or special funds under public law even if individual claims are included in the current invoice and the balance has been struck and recognized.
- If goods subject to retention of title are processed by the buyer into a new movable item, the processing shall be carried out for us without any obligation on our part; the new item shall become our property. In the event of processing together with goods not belonging to the Buyer, we shall acquire co-ownership of the new item in the ratio of the value of the goods subject to retention of title to the other goods at the time of processing.
- If goods subject to retention of title are combined, mixed or blended with goods not belonging to the Buyer in accordance with §§ 947, 948 BGB, we shall become co-owners in accordance with the statutory provisions. If the Buyer acquires sole ownership, he hereby assigns to us co-ownership in the ratio of the value of the goods subject to retention of title to the other goods at the time of combining, mixing or blending. In such cases, the Buyer shall store the item in our ownership or co-ownership, which is also deemed to be goods subject to retention of title, free of charge.
- If goods subject to retention of title are sold by the Buyer, alone or together with goods not belonging to the Buyer, the Buyer hereby assigns the claims arising from the sale in the amount of the value of the goods subject to retention of title with all ancillary rights and priority over the rest; we accept the assignment. The value of the goods subject to retention of title is our invoice amount plus a security surcharge of 10%, which, however, shall not be taken into account if it is opposed by third-party rights.
- Insofar as the resold goods subject to retention of title are co-owned by us, the assignment of the claim shall extend to the amount corresponding to our share in the co-ownership.
- If goods subject to retention of title are installed by the Buyer as an essential component in the property of a third party, the Buyer hereby assigns the claim for remuneration arising against the third party or the party to whom it relates in the amount of the value of the goods subject to retention of title with all ancillary rights, including such rights to the granting of a security mortgage with priority over the rest; we accept the assignment. Clause 4 sentences 2 and 3 shall apply accordingly.
- The Buyer shall only be entitled and authorized to resell, use or install the goods subject to retention of title in the ordinary course of business or only on condition that the claims within the meaning of clauses 4 and 6 are actually transferred to us. The Buyer shall not be entitled to dispose of the reserved goods in any other way, in particular by pledging them or assigning them as security. If, in connection with the payment or remuneration by the Buyer, a liability on our part is established under a bill of exchange, the reservation of title shall not expire before the redemption of the bill of exchange by the Buyer as drawee.
- We authorize the buyer, subject to revocation, to collect the claims assigned in accordance with 4-6. We shall not make use of the authorization to collect as long as the buyer meets his payment obligations, including those towards third parties. At our request, the buyer must name the debtor of the assigned claims and notify the debtor of the assignment; we are also authorized to notify the debtor of the assignment ourselves.
- In the event of default of payment on the part of the Buyer and in the other cases of clause 5 sentence 1, we shall be entitled to revoke the authorization to resell, use or install the assigned claims; this shall also apply in the event of a cheque or bill of exchange process. We are also entitled to demand the return of the reserved goods without withdrawing from the contract; the buyer is obliged to return the goods or to allow us to remove them.
- The buyer must inform us immediately of any enforcement measures by third parties against the reserved goods or the assigned claims, handing over the documents necessary for the objection.
- If the value of the securities granted exceeds the claim by more than 20%, we shall be obliged to retransfer or release them at our discretion. Ownership of the goods subject to retention of title and the assigned claims shall pass to the Buyer upon settlement of all claims in accordance with Clauses 1 and 2.
- The buyer is obliged to insure the delivered goods and the new items created from the delivered goods against fire and theft and to provide us with corresponding proof.
- The buyer is obliged to retain title to the goods delivered until the purchase price has been paid in full by his customers.
Liability for defects
- For the question of the existence of a material defect, the relevant customary practice for the trade in logs, sawn timber and semi-finished wood products, in particular the "Tegernsee Customs" with their annexes and appendix, shall also apply, unless otherwise stipulated in these GTC.
- The buyer is obliged to inspect the delivery item immediately and to make any complaints in writing. A notice period of two working days shall be deemed to be timely.
- In the event of material defects, all parts or services which exhibit a material defect within the limitation period shall, at the Buyer's discretion, be repaired, replaced or provided again free of charge, provided that the cause of the defect already existed at the time of the transfer of risk.
- We must first be given the opportunity to provide subsequent performance within a reasonable period of time. If the subsequent performance fails, the Buyer shall have the right - without prejudice to any claims for damages pursuant to VIII - to withdraw from the contract or to reduce the remuneration.
- Claims for material defects shall lapse after 12 months. This shall not apply insofar as the law prescribes longer periods in accordance with §§ 438 para. 1 no. 2 (buildings and items for buildings), 479 para. 1 (right of recourse) and 634 a para. 1 no. 2 (building defects) BGB, as well as in cases of injury to life, limb or health and in the event of an intentional or grossly negligent breach of duty by us and in the event of fraudulent concealment of a defect. The provisions on suspension of expiry, suspension or recommencement of the time limits shall remain unaffected.
- No fault on our part is required for the buyer to withdraw from the contract in the event of a material defect. In all other cases, the buyer may only withdraw from the contract in the event of a breach of duty for which we are responsible.
Limitation of liability
- Claims for damages and reimbursement of expenses on the part of the buyer, irrespective of the legal grounds, in particular due to breach of duties arising from the contractual obligation and from tort, are excluded.
- However, this shall not apply if mandatory liability is provided for under the Product Liability Act, in cases of intent, gross negligence, injury to life, limb and health, or breach of material contractual obligations. However, the claim for damages for the breach of essential contractual obligations is limited to the foreseeable damage typical for the contract, unless there is intent or gross negligence or mandatory liability is prescribed due to injury to life, limb or health. Insofar as liability is limited in accordance with the above provisions, this shall also apply to the personal liability of our employees, staff, representatives and vicarious agents.
Place of fulfillment, place of jurisdiction, applicable law
- The place of performance for all deliveries, including carriage paid deliveries, is the factory, forest or warehouse from which the delivery is made. The place of performance for the buyer's services is Sulzbach-Laufen.
- In the event of disputes arising from contractual relationships with merchants, the sole place of jurisdiction for all disputes arising directly or indirectly from the contractual relationships shall be our head office in Sulzbach-Laufen. However, we shall also be entitled to take legal action at the buyer's registered office.
- The legal relationship between the buyer and us is subject to German substantive law to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
Status: August 2015