|GTC of MS-Holz GmbH
1.1 Our GTC are a component part of all offers and contracts for our supplies and services in current and future business relations.
1.2 In addition applies -as long as they not conflict with our GCSS- the \”Tegernseer Gebräuche\” as an usage known and common in the wood processing industry, the timber trade businesses and any company ivolved in such kind of business. The Tegernseer Gebräuche apply with annexes, and appendix. Especially we point out the appendix \”Gebräuche über die Vermittlung von Holzgeschäften\” (Duties and Wrights of Timber Agents)
1.3 Conflicting conditions of the purchaser and those departing from our conditions of sale and supply will not form a component part of the contract unless we expressly agree to their application in writing. Our conditions of sale and supply apply even if we undertake delivery unconditionally while aware of contrary conditions of the purchaser or those departing from our conditons of sales.
1.4 Our conditions of Sale and Supply apply only to undertakings within the meaning of § 14 (1) Civil Code or legal persons under public law or a statutory undertaking.
2. Offers, offer documents, conclusions of contract
2.1 Our offers remain non-binding until final confirmation of order.
2.2 The references to technical standards and other information contained in our offer documents serve only to describe the service and contain no warranties granted, especially no warranty as to properties or durability.
Where we make recommendations for the use of our goods those are given to the best of our knowledge. However, in view of the multiplicity of potential uses, different requirements, and individual conditions for use, We accept no liability for the suitability of the goods for a particular potential use unless we have expressly assured their suitability in writing. The purchaser undertakes in any event to verify the suitability of the goods for the use intended by him for himself.
2.3 An order placed with us is a binding offer by the purchaser. We issue an order confirmation which is sent to the purchaser via fax, email or letter. Our order confirmation has to be proved by the purchaser. Changes/corrections of our order acknowledgement have to be done immediately and in written from by the purchaser. Those changes/corrections have to be approved by us. Only with our approval they are binding. Claims which are caused by non proving of our order confirmation are liable to the purchaser.
3.1 The price is indicated in the order confirmation.
3.2 We reserve our right to increase our prices accordingly on expiry of 6 weeks following conclusion of the contract if following conclusion of the contract price factors are increased (especially as a result of tax increases or increases in wages, customs duties, transportation, warehousing, or material costs), proof of which will be shown to the purchaser on request.
3.3 Unless otherwise agreed in our confirmation of order, our prices apply ex works or ex store excluding packaging, freight, transfer, and customs duties.
In addition, our prices apply plus value added tax at the current at the current legal rate. For supplies within the EU, the purchaser must provide his VAT identity number. Where a supply is exempt from value added tax, the purchaser must notify this in good time and show the requisite proof.
4. Conditions of payment
4.1 Unless the confirmation of order indicates otherwise, the purchase price is immediately payable, for partial deliveries as well, and due within 30 days following invoice date strictly net. The invoice will be issued at the date on which the goods are dispatched.
4.2 Discounts will be granted by special agreement in writing. We shall abide by an agreed discount only if the agreed time limit for that discount is observed. Discounts will only be granted on the bases of ex-work-prices.
4.3 Interest will be charged on arrears at 8 percentage points p.a. above the prevailing basic interest rate under § 247 Civil Code. This will not prevent enforcement of further loss. Deferment granted by us subsequently shall not, subject to any agreement otherwise, affect the duty to pay interest.
4.4 If we become aware of circumstances that give cause to doubt the purchaser\’s creditworthiness or if our claim to payment is subject to substantial risk on account of the purchaser\’s loss of assets or if the purchaser is in arrears with payment of the purchase price, we may demand full advance payment or sercurity and cancel the contract unless this is done within the set time limit.
4.5 The purchaser is entitled to make a setoff only, if his counterclaims are legally established or acknowledged by us in writing. The purchaser shall be entitled to exercise a right of retention where his counterclaim is based on the same contractual relationship. Where defects exist, the purchaser has a right of retention only if the supply is obviously faulty and the purchaser is clearly entitled to refuse acceptance, provided that the sum withheld is in reasonable proportion to the defects and the anicipated cost of subsequent discharge.
5. Supply, delivery period, arrears, cancellation
5.1 Delivery free site or free warehouse means delivery without unloading and subject to an access road carriageable with a heavy goods vehicle. The purchaser is liable for all damage occurring by his instructions to the deliverly vehicle to leave the carriageable access road. The vehicle will be unloaded rapildy and expertly by the purchaser. Waiting times for which the purchaser is responsible will be charged to the latter.
5.2 Partial deliveries will be permitted to a reasonable extent.
5.3 Delivery dates and periods are regarded as only approximately agreed. The delivery period commences on the day of dispatch of the order confirmation but not before due and proper discharge of the obligations to be fulfilled by the purchaser before delivery, especially therefore not before presentation of the documents, permits and releases to be procured by the purchaser and payment of all advances agreed. The delivery date and the delivery periods are regarded as having been observed if the goods have left the works or delivery store by the end of the delivery period or are declared ready for despatch.
5.4 Each contract/order is due to be supplied by the supplier of MS-Holz GmbH. Therefore the agreed delivery period is subject to ourselves being correctly and duly supplied. If there is no delivery of MS-Holz GmbH through the supplier because of reasons which are not in the responsibility of MS-Holz GmbH, the customer of MS-Holz GmbH and/or MS-Holz GmbH are free to cancle the contract/order. Rights of claims in damages or covering purchases does not result.
5.5 On changes of contract that could influence the delivery period, the period will be appropriately extended unless specially agreed otherwise.
5.6 In the event of force majeure or other unforeseeable or unusual circumstances for which we and our suppliers are not responsible (e.g. business interruption, strike, lock-out, instructions form the authorities, political turbulences, problems of energy supply, and delays in the supply of essential raw materials and building supplies) the delivery period will be extended by that of the delay and a reasonable start-up period.
We shall be relieved of the obligation to deliver if the said circumstances render supply or performance impossible or unreasonable, without the purchaser deriving claims in damages or cancellation rights in consequence, provided that we have advised the purchaser accordingly without delay.
5.7 If delivery dates or periods are exceeded, we shall be in arrears only on expiry of a reasonable extension of at least 8 working days fixed by the purchaser in writing, unless the order confirmation expressly indicates the delivery date or period as firm. (clause 5.6 applies).
5.8 The purchaser may seek damages for delay of performance, damages in lieu of performance or a refund of expenses in the cases of arrears for which we are responsible only in accordance with clause 9 below.
5.9 Except in the cases under clause 8.6 below, the purchaser may cancel the contract in accordance with the statutory provisions only if we are in breach of duty.
6. Delayed acceptance
If the purchaser delays acceptance or infringes other contractual duties of cooperation such as inspection, specification, call, acceptance or dispatch instructions, the purchaser shall indemnify us for the ensuing loss including any additional expenses. The enforcement of further claims and other rights remains reserved.
7. Transfer of risk, dispatch
7.1 Unless the order confirmation indicates otherwise, delivery ex works or ex store is agreed. Risk is transferred to the purchaser on handing over of the subject matter of supply to the forwarder or carrier but in any event when the subject matter leaves our works or one of our dispatch warehouse. This applies even if delivery is agreed carriage paid. Goods are in each case dispatched on the purchaser\’s behalf.
The risk passes to the purchaser from the date of readiness to deliver if dispatch is delayed through circumstances for which the purchaser is responsible.
7.2 Goods are returned to us at the purchaser\’s risk unless we are responsible for the return. We are not insured against returns of goods.
8. Legal and material defects
Wood is a natural substance; its natural properties, peculiarities, and features must therefore be continuously observed. In particular, the purchaser will take account of its biological, physical, and chemical properties on purchase and use. He will obtain the expert adivce when necessary. The bandwidth of natural colour, structural, and other differences within a species is a property of wood as a natural product and will not amount to defective supply.
8.1 In principle it is only our product description that is contractually agreed in respect of the properties of the goods. On the other hand, public statements, recommendations or advertising by ourselves do not constitute a contractual indication of the properties of the goods.
8.2 The client (buyer) has to unload the shipment in any case.
Claims in respect of defects by the purchaser will only be accepted if he examined the goods for defects immediately on receipt and has objected in writing time; a complaint is in time if received by us within 14 calendar days from delivery or, in the case of hidden defects, from discovery. However, the complaints period is reduced to seven calendar days for discolouration unless delivery of dry goods was agreed. This is without prejudice to merchants\’ statutory duty of examination and complaint (§377 Commercial Code).
In reference to excepting (unloading), storing and give-at-hand of the claimend delivery, § 12, Pos. 9. 10. 11. are part of our GTC and apply in any case.
8.3 If the goods are purchased on examination and accepted by the purchaser or his representative at the storage place of the goods, subsequent complaints are excluded if there was a failure to recognise the defects due to gross negligence. This does not apply where the defects were fraudulently concealed or the properties of the article were guaranteed.
8.4 No claim for defects shall lie where there is only insubstantial deviations from the agreed properties or only insubstantial utility impairment of utility.
8.5 Should defects be present on delivery or performance, the causes of which already existed at transfer of risk, the purchaser will at our election be entitled to subsequent performance through elimination of the defect or supply of a new fault-free article; supply of a different article or a short quantity is regarded as a defect.
In addition, the purchaser may claim all expenses necessary for subseqent performance if they are not increased through the article purchased being removed to a place other than that of performance.
We may refuse subsequent performance until the purchaser has discharged his payment duties towards us to an extent corresponding to the fault-free part of the service provided.
8.6 Should subsequent attempts at remedying the fault fail at least twice, the purchaser will at his discretion be entitled to cancel the contract or demand a corresponding reduction in the purchase price (abatement); he may claim damages only in accordance with 9 below.
8.7 Clause 7 of the Tegernsee Usages applies to roundwood and sawn wood.
9. Claims for damages and expenses
9.1 Unless stated otherwise above, any claims for damages or expenses by the purchaser on whatever legal grounds are excluded subject to clause 9.2 below; this applies especially to claims in damages through fault during contract negotiations, preparations for a contract or similar business contracts, on account of other breaches of duty and for tortious claims to make good material loss under § 823 Civil Code and for expenditure incurred by the principle instead of claiming making good of the loss in leu of performance.
9.2 The limitations of liability under clause 9.1 above do not apply
a) as far as the loss is caused by wilful act or gross negligence by ourselves or our representative or assistants, whereupon damages for gross negligence are limited to foreseeable loss typical of contract,
b) on culpable breach of essential contractual obligations the discharge of which is possible only on
proper execution of the contract and on the discharge of which the purchaser is entitled to rely, whereupon damages are similarly in this case limited to loss typical of the contract foreseeable at the time of the conclusion of the contract,
c) in cases of strict liability under the Product Liability Act,
d) on loss through death, bodily injury, and health impairment,
e) as far as the material defect has been fraudulently concealed or by way of an exception, a warranty as to properties, or durability in accordance with § 443 Civil Code has been given in writing.
9.3 The purchaser\’s entitlement to a refund of expenses is limited up to the value of interest he has in discharge of contract.
9.4 Insofar as our liability is excluded or limited, this also applies to the personal liability of our employees,
workers, colleagues, representatives, and assistants.
10.1 Claims for defects are statute-barred 12 months from transfer of risk unless longer time limits are necessarily prescribed by law, especially under §§ 438 (1) no. 2 and 479 Civil Code.
We are liable for replacement supplies and remedial work up to the end of the period of prescription applying to the subject matter supplied.
10.2 Claims in damages vested in the purchaser due to or in connection with the supply of goods are statute- barred 12 months following knowledge or grossly negligent lack of knowledge of the damage and the identity of the injuring party and, irrespective of knowledge or grossly negligent lack of knowledge, five of following its originating. The statutory time limits continue to apply to cases under Clause 9.2.
11 Reservation of title
11.1 The goods supplied remain our property up to full payment of all receivables under the trading relationship between ourselves and the purchaser (reserved goods), even if payments are made for specifically identified receivables. Allocation of individual receivables to a current account and striking of the balance and acknowledgement thereof do not affect the reservation of title. Only receipt of moneys by ourselves or a credit will be regarded as payment.
11.2 If the purchaser works up the goods or sells the goods to third parties, we will remain owner of the goods. The purchaser as from now transfers the receivable resulting from onward sale up to the value of the reserved goods with all ancillary rights and ranking before the remainder; we accept the transfer.
11.3 If the purchaser builds reserved goods into third party property as a substantial component, the purchaser as from now assigns the transferable claims to remuneration arising against the third party or the person up to the value of the reserved goods with all ancillary rights including any such to granting of a security mortgage, ranking above the remainder; we accept the assignment. Clause 11.3 (2) and (3) above apply analogously.
11.4 If the purchaser builds reserved goods into the purchaser\’s property as a substantial component, the purchaser as from now assigns the receivables arising from the sale of the property or property rights up to the value of the reserved goods with all ancillary rights and ranking above the remainder; we accept the assignment. Clause 11.3 (2), and (3) above apply analogously.
11.5 The purchaser is entitled and authorised to sell the reserved goods on, use them or build them in only the normal course of business and only on condition that the receivables actually pass to us in accordance with clauses 11.3, 11.4, and 11.5. The purchaser is not entitled to dispose of reserved goods in other ways, especially through pledge or transfer as collateral.
11.6 The purchaser remains authorised to collect the receivables assigned in accordance with clauses 11.3, 11.4 and 11.5 above until further notice, at any time, by ourselves. We shall not resort to our own collection entitlement as long as the purchaser discharges his payment obligations towards third parties as well. The purchaser will at our request name the debtor in respect of the assigned receivables and notify the assignment to the latter; we are authorised also to notify the assignment to the debtors ourselves.
11.7 The purchaser undertakes to advise us immediately of a pledge on reserved goods or on receivables previously assigned or of their other impairment by third parties, passing on the necessary documents for action. The purchaser will bear all expenses of our intervention, unless these are covered by other means.
11.8 The right of onward sale, use or building in of reserved goods, and authorisation to collect assigned receivables lapse on suspension of payments, applications for or opening of bankruptcy proceedings, or legal or voluntary composition proceedings; the collection authority similarly lapse if a cheque or bill is protested.
11.9 We shall be entitled to recover the article purchased on breach of contract by the purchaser, especially arrears of payment. Recovery of the article purchased does not imply cancellation of the contract unless we have so expressively declared in writing. We are entitled to dispose of the articles purchased following recovery; the proceeds of sale will be allocated to the purchaser\’s liabilities less reasonable disposal expenses.
12 Place of performance, place of jurisdiction, choice of law
12.1 The place of performance for supply is at the production plant of our supplier or the dispatch warehouse. The place of performance for payment of the purchase price and for all other services for the purchaser is our place of business.
12.2 The place of jurisdiction if the purchaser is a merchant, legal person under public law or a statutory undertaking, is our place of business, whereupon we shall be entitled to sue the purchaser at any other legal place of business as well.
12.3 The law of the Federal Republic of Germany apply. Even if the purchaser does not have his place of business in Germany (Art. 10 CISG), uniform UN sales law (CISG) will apply additonally to the contractual arrangements and to our general conditions of sale and apply with priority over other statutory provisions of German law.