Terms of offer

General terms of offer, delivery and payment (General Terms of Business) of Vöhringer GmbH & Co. KG in Trochtelfingen

 

January 2009

 

§ 1 

Scope, exclusion of third-party terms of business

 

(1)      All our offers, deliveries and services shall be based on these General Terms of Business. The following General Terms of Business shall only apply to business entities as defined by Section 14 of the German Civil Code (Bürgerliches Gesetzbuch, BGB), a legal entity or a special authority under public law (hereinafter referred to as "Customer").

 

(2)      Our General Terms of Business shall apply, in the case of permanent business relations, even without renewed, express reference, to future offers, deliveries and performances to the Customer.

 

(3)      Our General Terms of Business alone shall apply. The applicability of other general terms of business shall be excluded, unless we have explicitly agreed to such application in writing.

 

 

§ 2 

Conclusion of contract, scope of supply, covenant against assignment

 

(1)      Our offers are made without charge and without obligation, unless otherwise agreed in writing. Contracts and agreements shall only be binding when we have confirmed the order in writing or made a delivery. This shall also apply to additions, changes or subarrangements.

 

(2)      Our written order confirmation or, if this does not exist, our offer shall be authoritative for the scope of the delivery or performance.

 

(3)      All the data about our products, in particular the illustrations, dimensions and performance data, as well as other technical data, shall be average values, which shall be regarded as approximate. Tolerances in quantities, weights, numbers of units and measurements that are customary in the industry shall remain expressly reserved.

 

(4)      The documents and records on which this offer is based, as well as technical drawings, illustrations, descriptions, weights and dimensions, shall be the subject matter of the contractual agreement only if this is expressly agreed in writing. We reserve the right to make such changes and adjustments that do not significantly affect the purpose of the contract and of the delivery. All documents and records shall remain in our ownership and shall not be retained, copied or reproduced by the Customer or made accessible to third parties and shall be returned to us immediately at our request. All protected rights to these documents and records in our favour shall remain in place even if we hand the documents and records over to the Customer.

 

(5)      The assignment of claims of the Customer against us shall only be permitted with our express written consent. The same shall apply to all statutory claims of the Customer in connection with the contractual relation.

 

 

§ 3 

Delivery periods

 

(1)      The agreed delivery period shall begin at the earliest upon conclusion of this contract, but not before the Customer has provided us with all the necessary documents and made any agreed payment. The delivery deadline shall be considered adhered to when the subject matter of delivery has been handed over to a transport person or the Customer has been notified that it is ready for collection if, for reasons for which the Customer is responsible, it cannot be delivered directly to the Customer.

 

(2)      The delivery period shall be extended by a reasonable amount of time if acts of force majeure or the occurrence of unforeseeable or extraordinary events affect us or our suppliers. Unforeseeable events in this meaning are, in particular, riots, strikes, lock-outs, fire, attachment, boycotts, legal or official orders and restrictions, or incorrect or late delivery by our suppliers, if these events are beyond our control and relate to our delivery obligations. If the delivery period is extended by a reasonable amount of time due to such circumstances, the Customer may withdraw from the contract at the end of this extended delivery period. If the Customer is interested in part deliveries, the Customer may also withdraw from parts of the contract. If we have already made part deliveries and/or part performances the Customer may only withdraw from the entire contract if it demonstrably has no interest in part delivery and/or part performance on our part. Other statutory or contractual rights of withdrawal shall remain unaffected hereby.

 

(3)      If we default in delivery and if the Customer grants a reasonable extension, on expiry of this extension, if we have not made delivery the Customer may withdraw from the contract or, if the Customer is interested in part delivery on our part, may withdraw from parts of the contract. Additional claims of the Customer, especially claims for compensation due to non-performance or damage caused by delay, shall be excluded, unless they have been explicitly granted in § 10 below. In cases in which § 10 of these terms and conditions gives rise to liability on our part due to default, the amount of default damages shall be limited to between 0.5% and 5% of the value of the part of the delivery that could not be used by the Customer as a result of delayed delivery. The parties may, at their discretion, demonstrate that the actual loss is higher or lower.

 

(4)      Deliveries before the end of the delivery period and part deliveries shall be permitted unless otherwise agreed in writing.

 

(5)      We shall be entitled to deliver up to 10% more or less. Average measurements shall apply, at our option, for the number of units and the cubic volume.

 

(6)      For sales from stock, we shall store the goods for 6 days from the conclusion of the contract and, for sales ex quay, we shall store the goods for 3 days from the conclusion of the contract without charge. Thereafter we shall invoice our actual storage costs.

 

 

§ 4 

Prices, payment, part payment

 

(1)      The stipulated prices shall apply to deliveries ex works and shall be net prices, exclusive of applicable sales tax, even if this is not expressly stated, and exclusive of costs for packaging, freight, installation, shipment, insurance expenses, customs clearance, any bank and transaction costs for payments, and other costs.

 

(2)      In the case of carriage-paid delivery, freight charges shall be submitted without discount. They shall be credited to the Customer following submission of the relevant documents. Increases in freight charges, customs duty and other charges occurring after the date of purchase shall be borne by the Customer.

 

(3)      Save as expressly provided otherwise, our invoices shall be payable immediately without deduction.

 

(4)      The Customer shall be in default if it does not pay within 30 days from receipt of the invoice, unless other circumstances substantiating default (for example a payment reminder, or an agreed shorter payment period, or a specific payment date) have been agreed. As soon as the Customer defaults, it shall pay default interest of 8% above the base rate.

 

(5)      In the event of default in payment we shall have the right to make other deliveries contingent upon the full payment of the claims in default.

 

(6)      If the Customer is in arrears with a due payment, any agreed payment targets shall lapse and all bills of exchange receivable at that time and/or all our unsettled claims against the Customer shall be due for payment immediately and without deduction.

 

(7)      Unless a divergent written agreement has been entered into, we shall have the right to adjust prices and/or freight tariffs if our costs for wages and salaries, raw materials or supplies, energy costs, freight costs and customs duties or other materials rise significantly. This right shall also apply in the event of anticipated losses arising out of contracts for the performance of continuous obligations.

 

(8)      We shall also have the right to refuse performance if, after the contract is concluded, circumstances come to our attention leading us to fear that the Customer may be unable to perform the service incumbent upon it in part or in whole or not within the time allowed. This shall not apply if the Customer has deposited reasonable collateral with us. This shall apply in particular if our goods credit insurer refuses to hedge the purchase price risk after the contract is concluded.

 

(9)      We shall have the right to demand interest after due date of 5% above the relevant base rate. We shall not be required to send a reminder in advance.

 

(10) Setoff against counter claims of the Customer that are contested and not legally established shall be excluded. Notices of defect on the part of the Customer shall affect neither the duty to pay nor the due date. The Customer shall waive the exercising of a right to refuse performance and/or a right of retention unless grossly negligent breaches of contract are imputable to us, our legal representatives or vicarious agents, or the counter claims of the Customer underlying the right to refuse performance and/or the right of retention are uncontested and legally established.

 

(11) We shall only accept cheques and/or bills of exchange if we have consented to such a method of payment. All costs incurred by us as a result of such payment shall be borne by the Customer.

 

 

§ 5 

Termination

 

(1)      If the Customer terminates the order before the ordered goods are delivered, the Customer shall still be obliged to pay the agreed purchase price. The costs that we save as a result of the termination of the order or the profit that we are deprived of through the failure to deliver shall be deducted form the purchase price. We shall have the right to choose, at our discretion, which method of calculation to use.

 

(2)      In the event of termination by the Customer before the start of production of the deliverables, the agreed flat-rate amount to be repaid by the Customer shall be 10% of the agreed purchase price. We and the Customer shall have the right to demonstrate, at our discretion, that the actual loss is higher or lower than this amount.

 

 

§ 6 

Passing of risk, dispatch, packing

 

(1)      Unless otherwise agreed in writing, the deliverables shall be handed over to the Customer from our works.

 

(2)      The risk of the accidental destruction of the deliverables shall pass to the Customer when the deliverables are handed over to the transport person. This shall also apply if we undertake to transport the deliverables for the Customer and even if we assume the costs for packing and transport. Should the dispatch of the deliverables be delayed due to circumstances for which the Customer is responsible, the risk of accidental destruction shall pass to the Customer upon notification that the deliverables are ready for delivery.

 

(3)      We shall be responsible for the way in which the deliverables are packed and dispatched, unless an alternative written agreement has been entered into.

 

(4)      Transport insurance for the deliverables shall only be taken out at the specific written request of the Customer and at the latter’s expense.

 

 

§ 7 

Reservation of title

 

(1)      We reserve title to all goods delivered by us until all our claims against the Customer out of the business relation, including claims out of cheques and bills of exchange, are paid in full. If payment is made by cheques and bills of exchange we reserve title to all goods delivered by us until the risk of recourse has expired.

 

(2)      If the Customer processes the goods subject to the retention of title, this shall be carried out on our behalf as manufacturer in accordance with Section 950 of the German Civil Code (Bürgerliches Gesetzbuch, BGB). If the Customer processes or combines the goods subject to the retention of title with other goods or incorporates them in other goods, we shall acquire co-ownership in the new thing in the proportion the value of the goods subject to the retention of title bears to the value of the other goods used. The Customer may further process the goods in the usual course of business provided the aforementioned security interests are respected.

 

(3)      The Customer may sell the goods subject to the retention of title in the usual course of business provided our reservation of title to the goods is respected. (The assignment of the claim to sell shall be regulated in paragraph 4 below). The Customer shall not be entitled to transfer or pledge the goods or dispose of them in any other way.

 

(4)      The Customer herewith assigns to us all the receivables arising against third parties from the resale of the goods subject to the retention of title. We herewith accept the assignment. Insofar as we are simply co-owners of the sold goods, the assignment shall take place only up to the amount of our claims against the Customer.

 

(5)      We revocably authorise the Customer to collect the receivables assigned to us in its own name on our behalf. This authorisation may only be revoked if the Customer does not duly fulfil its obligations under this contract, in particular its payment obligations, becomes insolvent or bankrupt, an application is made for the opening of insolvency proceedings, or such an application is rejected due to lack of assets. In the event of the revocation of the authorisation for the collection of our receivables, the Customer shall notify the debtor of the assignment of the receivables to us. We shall also have the right, at our discretion, to disclose the extended reservation of ownership to the third party.

 

(6)      The right of the Customer to dispose of the goods subject to the retention of title, to process them, or to collect the assigned goods shall lapse, even without express revocation, if insolvency proceedings are opened over the Customer’s assets or if an application for the opening of insolvency proceedings is rejected due to lack of assets, if payments are suspended, if the Customer or a third party makes an application for the opening of insolvency proceedings, or if the Customer is unable to pay or is over-indebted. In these cases, as well as in the cases of § 7(5), we shall have the right to withdraw from the contract upon expiry of a reasonable period of time, with the result that we shall be entitled to take back the goods subject to the retention of title. The Customer shall hand over the goods. Proceeds from the sale of the goods, less the costs of sale, shall be offset against the Customer’s obligations towards us.

 

(7)      If the authorisation to collect the assigned receivables is revoked, the Customer shall disclose to us immediately the third parties against which receivables out of the assigned right exist and the amount of such receivables.

 

(8)      The Customer shall handle the goods subject to the retention of title with care and shall insure them against all normal risks on its own account. The Customer herewith assigns to us its claims in this regard out of the relevant insurance policies. We herewith accept such assignment.

 

(9)      The Customer shall promptly notify us in writing of the seizure of the goods subject to the retention of title and/or of the receivables assigned to us and of all other claims raised by third parties regarding the goods subject to the retention of title or the receivables assigned to us. If the goods are seized, a copy of the report on assets seized and a statutory declaration shall be sent to us stating that the goods seized are still subject to the retention of title agreed with us.

 

(10) The Customer shall also keep us informed of the whereabouts of the goods and of amounts receivable resulting from the resale of the goods.

 

(11) If the securities given to us exceed the receivables to be secured by more than 20% we shall, at the Customer’s request, release reasonable securities, at our option.

 

(12) The Customer must notify us immediately in writing if third parties gain access to the goods subject to the retention of title, the assigned receivables or the other documents and records. All costs of the legal defence of our goods, even against third parties, shall be borne by the Customer.

 

 

§ 8 

Warranty

 

(1)      We shall be liable for existing defects as to quality and title with regard to the deliverables existing at the time at which the risk passes to the Customer in accordance with the following provisions.

 

(2)      Only the direct purchaser shall have warranty claims against us. Warranty claims shall not be assigned without our consent.

 

(3)      Specific characteristics shall only be guaranteed by us if we have expressly confirmed this in writing. We shall only accept warranty if we have described a property as “guaranteed” in writing.

 

(4)      Apparent defects, shortages or incorrect shipments must be reported to us in writing without delay within one week of delivery but, in all events, prior to compounding, mixing, processing or incorporation. Otherwise, the deliverable shall be considered approved, unless fraud is imputable to our statutory representatives or vicarious agents. Hidden defects shall be brought to our attention in writing without delay within 7 days of their discovery. Sections 377 and 378 of the German Commercial Code (Handelsgesetzbuch (HGB)) shall also apply.

 

(5)      We shall be given the opportunity jointly to assess the reported complaints and to be present when samples of materials are taken for examination.

 

(6)      For a thing that has been used for a building in accordance with its normal application and has caused the defectiveness of that building, warranty claims shall become time-barred 5 years following delivery of the deliverable. In all other cases, warranty claims shall become time-barred 12 months following delivery.

 

(7)      Our warranty for defects as to quality and title shall be limited to subsequent performance. Within the framework of our duty of subsequent performance, at our discretion, subsequent performance may be discharged through elimination of the defect (subsequent improvement) or through the delivery of new goods (substitute delivery). If we do not fulfil this obligation within a reasonable period of time or if remedial performance fails despite a repeated attempt the Customer shall be entitled to demand a reduction in the purchase price or to withdraw from the contract. The rescission of the contract shall be excluded if the defect is insignificant. In addition, provided we have made partial deliveries that are free of defects, the rescission of the entire contract shall only be permissible if the Customer’s interest in the partial deliveries made has demonstrably ceased. Claims, especially claims for the reimbursement of expenses or claims for compensation, shall only exist within the framework of the regulations of § 10 below. Such faulty parts that have been replaced by new ones shall pass into our ownership, or shall remain in our ownership, as the case may be, and shall be returned to us at our request and expense.

 

(8)      The Customer shall send the defective goods to us, at its own risk, for subsequent improvement or substitute delivery, unless this is impossible due to the nature of the delivery. We shall bear all transport costs incurred in respect of subsequent performance, but only from the place where the purchased goods were delivered as provided in the contract and only up to the amount of the purchase price.

 

(9)      The Customer shall give us the necessary time and opportunity to perform the subsequent improvement or substitute delivery. Only in urgent cases, where operational safety is endangered, in order to prevent disproportionately large losses, or if we are in default with regard to the remedying of defects, shall the Customer have the right, following our prior notification, to remedy the defect itself or to have it remedied by a third party and to demand from us reimbursement of the necessary costs.

 

(10) Rights of recourse within the meaning of Sections 478 and 479 of the German Civil Code (Bürgerliches Gesetzbuch, BGB) shall only exist if their exercise by the consumer is justified and only to the extent permitted by law, but not for goodwill settlements, and shall presuppose that those entitled to recourse have fulfilled their own duties, in particular the duty to notify.

 

(11) The further processing or incorporation of the goods delivered by us shall always be regarded as a waiver of the notice of defects, insofar as the defect was apparent.

 

(12) In cases of justified notices of defects the Customer may only withhold payment in reasonable proportion to the defects as to quality that have occurred. If notices of defects are unjustified, we shall be entitled to demand from the Customer the reimbursement of expenditure incurred as a result.

 

(13) Warranty claims shall not be raised for an insignificant deviation from the agreed or usual characteristics or suitability, e.g. insignificant deviations in colour, dimensions and/or quality or performance features of the products.

 

(14) Acknowledgement of defects as to quality shall always be made in writing.

 

(15) Excluded from the warranty is the suitability of the deliverable for a purpose intended by the Customer that deviates from the normal purpose, unless that has been agreed in writing.

 

(16) Our warranty obligation only extends to the delivery of new products. Save as expressly provided otherwise, used products shall be sold as seen and shall not be covered by warranty.

 

(17) Customers who are re-sellers should keep in reserve a sufficient stock of replacement parts to enable them to react quickly to replace a defective part.

 

(18) Excluded from the warranty is normal depreciation, wear and tear, damage caused by the purchaser or a third party, inappropriate use or misuse of the products, including inadvertent or deliberate destruction of or damage to the products.

 

(19) With respect to products of third parties, our warranty is restricted to the assignment of the claims we may have against the suppliers of such products. If the Customer is unable to enforce its warranty claims against the suppliers of products of third parties, we shall take responsibility for them within the framework of our General Terms of Business.

 

 

§ 9 

Withdrawal, impossibility

 

(1)      In addition to the cases regulated elsewhere, the Customer may withdraw from the contract by giving written notice of withdrawal if it becomes impossible for us to fulfil our obligations, before the risk of the accidental destruction of the deliverables passes to the Customer. If it becomes impossible for us to fulfil just some of our obligations the Customer may withdraw from the contract, if it is clear that the Customer has no interest in part deliveries. In other cases, the Customer may demand a reasonable reduction in the purchase price. In general, the Customer may only withdraw from the contract if the breach of our contractual duties is fundamental.

 

(2)      If the impossibility of performance is beyond our control or beyond the control of the Customer, we shall be entitled to payment for the partially provided services.

 

 

§ 10 

Liability

 

(1)      We shall only be liable for losses, on whatever legal grounds they may arise:

 

a)          insofar as intent or gross negligence is imputed to us, our legal representatives or vicarious agents;

b)         for harm to life, physical injury or harm to health arising from a negligent or intentional breach of duty;

c)          for the negligent or intentional breach of fundamental contractual duties;

d)         for defects that we fraudulently conceal or whose absence we have guaranteed;

e)          for personal injury or physical damage to privately used goods for which we are liable under the Product Liability Act (Produkthaftungsgesetz).

 

We shall not be liable for additional claims for compensation.

 

(2)      Our liability for the negligent or intentional breach of fundamental contractual duties shall be limited to typical, reasonably foreseeable damage. Typical, reasonably foreseeable damage shall be set at the amount of the contractual value of the performance concerned.

 

 

§ 11 

Return of goods

 

(1)      Insofar as, under these terms and conditions, we are obliged to take back delivered goods from the Customer, we shall be obliged to take back the delivered goods in whole or in part provided these goods are unused, unchanged, as new, in accordance with our current delivery programme.

 

(2)      In the event that we take back delivered goods from the Customer, the Customer shall receive, in accordance with paragraph 1 above, a credit of 90% of the calculated net price of the returned goods. The Customer shall not be entitled to raise further claims. In particular the Customer shall not have the right to the full or partial repayment of the price paid for the goods.

 

(3)      If goods are sent back due to defects for which we are not responsible the costs of the return delivery shall be borne by the Customer.

 

 

§ 12 

Import and export business

 

With regard to import and export transactions we shall have the right to withdraw from the contract if we or our suppliers have not been granted the necessary approvals or if the performance of the contract is or becomes impossible due to official prohibitions. The Customer shall not be able to derive claims against us on this count.

 

 

§ 13 

Place of performance, place of jurisdiction, choice of law

 

(1)      The place of performance for all claims arising out of the business relation between us and the Customer is Trochtelfingen.

 

(2)      The place of jurisdiction for all claims arising out of the business relation, including claims out of cheques and bills of exchange, shall be the place of performance. We shall however have the right to take action against the Customer at its general place of jurisdiction.

 

(3)      All disputes arising out of contract to which these terms and conditions apply and all disputes arising out of the business relation between us and the Customer shall be governed by and construed in accordance with the laws of the Federal Republic of Germany to the exclusion of the United Nations' Convention on Contracts for the International Sale of Goods dated 11 April, 1980 and international private law.

 

 

§ 14 

Final provisions

 

(1)      Should individual provisions of these terms and conditions by ineffective, in part or in whole, the effectiveness of the remaining provisions shall not be affected.

 

(2)      Save as otherwise agreed in these conditions of purchase and delivery, the commercial practices, in particular those of the members of the Verein Deutscher Holzeinfuhrhäuser e.V. (Association of German Timber Importers) for trade with heavy round timber and veneer, shall apply.