GENERAL TERMS AND CONDITIONS
General Terms and Conditions of Delivery and Payment ( GTC ) in Business Transactions
Status: September 1, 2018
1.1 All our deliveries and services are based on the following “General Terms and Conditions of Delivery and Payment” ( GTC ). In addition, the customs of the timber industry (Tegernseer Gebräuche) and the general terms of delivery for products and services of the German Electrical and Electronic Industry shall apply.
1.2 Differing conditions, in particular the buyer’s conditions of purchase, are hereby disregarded.
1.3 Within the framework of an ongoing business relationship between merchants, the GTC shall also become part of the contract if the seller has not expressly pointed out their inclusion in the individual case.
2. OFFERS AND CONCLUSION OF CONTRACT
Our offers are subject to change without notice. The contract is only concluded by our written order confirmation or by the execution of the order.
Our prices are net prices in EURO (EUR), without VAT, for deliveries from the workshop, without packaging.
4. ORDER CONFIRMATION
Changes to orders require our written consent. If the order is cancelled, all costs incurred by us in connection with the order shall be borne by the customer.
5. DELIVERY DATES
Delivery dates shall be stated at our best discretion. They shall only be binding if they have been expressly designated by us as binding or in an equivalent manner. If we are prevented from fulfilling the contract on time due to procurement, manufacturing or delivery disruptions – at our premises or those of our suppliers, e.g. due to energy shortages, material procurement difficulties, traffic disruptions, strikes, lockouts or the occurrence of unforeseeable events, the period shall be extended accordingly.
The purchaser’s claims for damages due to delayed delivery as well as claims for damages in lieu of performance shall always be limited to the amount of the foreseeable damage. In the event of ordinary negligence, we shall not be liable for consequential damages of delay or non-delivery, in particular not for loss of profit of the customer or other production downtime costs.
6. DELIVERY, TRANSFER OF RISK AND DELAY
6.1 With the provision of the goods at the agreed place of delivery by the seller, the risk passes to the buyer.
6.2 Partial deliveries are permissible to a reasonable extent.
6.3 The delivery period may be reasonably extended – even within a delay – in the event of force majeure and all unforeseen obstacles occurring after conclusion of the contract for which the seller is not responsible (including but not limited to operational disruptions, strikes, lock-outs or disruptions of traffic routes), insofar as such obstacles demonstrably have a considerable influence on the delivery of the object sold. This shall also apply if these circumstances occur at the seller’s suppliers and their sub-suppliers. The seller shall inform the buyer of the beginning and end of such obstacles as soon as possible. The buyer may demand a declaration from the seller as to whether they wish to withdraw from the contract or to deliver within a reasonable period of time. If the seller does not report back immediately, the buyer can withdraw. Claims for damages are excluded in this case. The above provisions shall apply mutatis mutandis to the buyer if the above-mentioned hindrances occur at the buyer’s premises.
6.4 The seller shall be liable with regard to timely delivery only for their own fault and that of their vicarious agents. They shall not be liable for the fault of their upstream suppliers, as these are not their vicarious agents. The seller is, however, obliged to assign to the buyer any claims they may have against their suppliers upon request.
6.5 In the event of a delay in delivery, the buyer shall, at the seller’s request, declare within a reasonable period of time whether they still insist on delivery or withdraw from the contract due to the delay and/or claims damages instead of delivery.
Returns may only be made with our consent. Customer-specific products cannot be returned.
8.1 Unless otherwise agreed, the purchase price is due immediately without deduction upon receiving the goods. For first deliveries or new customers, the purchase price is due immediately in cash. Cheques or other means of payment will not be accepted.
8.2 Payments by bill of exchange are only permissible by special agreement. In the event of a bill protest, the seller may demand immediate cash payment concurrently with the return of the bill.
8.3 In the event of default in payment, the statutory provisions shall apply. Possibly agreed discounts will not be granted if the buyer is in default of payment for earlier deliveries.
8.4 If the buyer is in default of payment due to an overdue notice (§ 286 para. 1 BGB) or if he does not honour a bill of exchange on maturity, the seller is entitled, after prior reminder, to take back the goods, enter the buyer’s premises if necessary and take the goods away. The seller may also prohibit the removal of the delivered goods. The taking back is not a withdrawal from the contract.
8.5 A refusal or retention of payment is excluded if the buyer knew of the defect or any other reason of complaint at the time the contract was concluded. This shall also apply if they remained unknown to them as a result of gross negligence, unless the seller fraudulently concealed the defect or other reason for complaint or assumed a guarantee for the quality of the item.
Otherwise, payment may only be retained to a reasonable extent due to defects or other complaints. In the event of a dispute, an expert appointed by the buyer’s Chamber of Industry and Commerce will decide on the amount. The latter shall also decide on the distribution of the costs of their intervention at their own discretion.
8.6 Compensation is only possible with claims recognised by the seller or legally established.
9. PROPERTIES OF THE GOODS
9.1 The descriptions of our products are merely specifications of condition and in no way constitute a guarantee for the condition or durability of the goods. A guarantee only exists if this is expressly stated.
9.2 Antique timber has aged naturally without any means whatsoever; its natural properties, deviations and characteristics must therefore always be kept in mind. In particular, the purchaser must take into account its biological, physical and chemical properties when purchasing and using the goods.
9.3 The range of natural colour, structure and other differences within a type of wood is one of the characteristics of the natural product wood and does not constitute any cause for complaint or liability.
9.4 If necessary, the buyer must seek professional advice.
10. NOTICE OF DEFECTS, WARRANTY AND LIABILITY
10.1 Antique timber samples sent from the demolition of former buildings show differences in colour, texture and structure. They represent, if at all, only one segment/share of the quantity to be delivered and are no reason for a complaint. Here, also the typical processing characteristics & biological chemical properties have to be considered. As a rule, samples are subject to a charge, unless we have expressly provided them free of charge. The seller shall only be liable for defects within the meaning of § 434 BGB as follows: The buyer has to examine the received goods immediately for quantity and condition. Obvious defects must be reported to the seller in writing within 14 days. In the case of mutual commercial transactions between merchants, § 377 HGB remains unaffected.
10.2 If the buyer discovers defects in the goods, they may not dispose of them, i.e. they may not be divided, resold or further processed, until an agreement has been reached on the handling of the complaint or until an expert commissioned by the Chamber of Industry and Commerce at the buyer’s place of business has carried out a procedure to preserve evidence.
10.3 In the event of justified complaints, the seller shall be entitled to determine the type of sublementary performance (replacement delivery, rectification of defects) taking into account the nature of the defect and the justified interests of the buyer.
10.4 The buyer shall inform the seller immediately of any warranty claim arising for a consumer.
10.5 Claims for material defects become statute-barred after 12 months. This shall not apply if the law prescribes longer periods pursuant to §§ 438 (1)(2) (buildings and items for buildings), 479 (1) (right of recourse) and 634a (1)(2) (construction defects) BGB.
10.6 Section 11 (General limitation of liability) shall apply to claims for damages.
10.7 In the case of resale of antique timber (sunburned boards/outside formwork, beams & planks), the goods MUST be re-sorted before resale, otherwise a complaint is no longer possible. The classifications of TEOMA Europe GmbH apply.
11. GENERAL LIMITATION OF LIABILITY
11.1 Claims for damages and reimbursement of expenses on the part of the purchaser, irrespective of the legal basis, in particular due to breach of duties arising from a contractual obligation and tort, are excluded. This shall not apply in cases where a guarantee or a procurement risk has been assumed. This shall also not apply in cases of mandatory liability, e.g. under the Product Liability Act, in cases of gross negligence, injury to life, body or health or breach of fundamental contractual obligations. The claim for damages for the violation of essential contractual obligations is, however, limited to the foreseeable damage typical for the contract, insofar as there is no gross negligence or liability due to injury to life, body or health. This does not imply a change in the burden of proof to the detriment of the purchaser.
11.2 This provision shall apply mutatis mutandis to the buyer.
12. RETENTION OF TITLE
12.1 The seller retains title to the goods until the purchase price has been paid in full. In the case of goods which the buyer obtains from the seller within the framework of an ongoing business relationship, the seller retains title until all claims against the buyer arising from the business relationship, including future claims, including those arising from contracts concluded at the same time or later, have been settled. This shall also apply if individual or all claims of the seller have been included in a current account and the balance has been struck and acknowledged. If, in connection with the payment of the purchase price by the buyer, a bill of exchange liability of the seller is established, the retention of title shall not expire before the payment of the bill of exchange by the buyer as drawee. If the buyer defaults on payment, the seller is entitled to take back the goods after a reminder and the buyer is obliged to surrender them.
12.2 If the reserved goods are processed by the buyer into a new movable object, the processing shall be carried out for the seller without the seller being obliged to do so; the new object shall become the property of the seller. In the event of processing together with goods not belonging to the seller, the seller shall acquire 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 combined, mixed or blended with goods not belonging to the seller in accordance with §§ 947, 948 BGB, the seller shall become co-owner in accordance with the statutory provisions. If the buyer acquires sole ownership through combination, mixing or blending, the buyer hereby transfers co-ownership to the seller in proportion to the value of the reserved goods to the other goods at the time of combination, mixing or blending. In these cases, the buyer must store the object owned or co-owned by the seller, which is also deemed to be reserved goods within the meaning of the above conditions, free of charge.
12.3 If reserved goods are sold alone or together with goods not belonging to 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 rest; the seller accepts the assignment. The value of the reserved goods is the invoice amount of the seller, which, however, remains out of account insofar as the rights of third parties conflict with it. If the resold reserved goods are co-owned by the seller, the assignment of the claims shall extend to the amount corresponding to the seller’s share in the co-ownership.
12.4 If reserved goods are installed by the buyer as an essential component in a property, ship, ship under construction or aircraft of a third party, the buyer already now assigns the assignable claims against the third party or the party concerned for remuneration in the amount of the value of the reserved goods with all ancillary rights including such rights to the granting of a security mortgage with priority over the remainder; the seller accepts the assignment. Paragraph 12.3, sentences 2 and 3 shall apply mutatis mutandis.
12.5 If reserved goods are installed by the purchaser as an essential component in a property, ship, ship under construction or aircraft of the purchaser, the purchaser hereby assigns the claims arising from a sale of the property, of property rights, of the ship, ship under construction or aircraft to the amount of the value of the reserved goods with all ancillary rights and with priority over the remainder; the seller accepts the assignment. Paragraph 12.3 sentences 2 and 3 shall apply mutatis mutandis.
12.6 The buyer is entitled and authorized to resell, use or install the reserved goods only in the usual course of business and only in accordance with the authorisation and entitlement that the claims of paragraphs 3 to 5 are actually to the seller. 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.
12.7 Subject to revocation, the seller authorises the buyer to collect the claims assigned in accordance with paragraphs 3-5. The seller will not make use of their own authority to collect as long as the buyer meets the payment obligations, also vis-à-vis third parties. At the seller’s request, the buyer shall name the debtors of the assigned claims and notify them of the assignment; the seller shall also be entitled to notify the debtors of the assignment itself.
12.8 The buyer shall inform the seller immediately of any enforcement measures taken by third parties against the reserved goods or the assigned claims, handing over the documents necessary for the objection.
12.9 The right to resell, use or install the reserved goods or the authorisation to collect the assigned claims shall lapse upon cessation of payments and/or filing for insolvency proceedings; the authorisation to collect shall also lapse in the event of a protest of a bill of exchange. This does not apply to the rights of the insolvency administrator.
12.10 If the value of the securities granted exceeds the claims (possibly reduced by down payments and partial payments) by more than 20%, the seller shall be obliged to retransfer or release at his discretion. Upon repayment of all claims of the seller arising from the business relationship, ownership of the reserved goods and the assigned claims shall pass to the buyer.
13. CONSTRUCTION SERVICES
For all construction services, including assembly, the contracting regulations for construction services (VOB, Parts B and C) apply in the version valid at the time of conclusion of the contract, insofar as the contract is awarded by a contracting party active in the construction industry.
We reserve the right to make technical changes and improvements to our products.
15. IN EFFECT
Should any of the above conditions be or become invalid, this shall not affect the validity of the remaining conditions.
16. PLACE OF JURISDICTION AND APPLICABLE LAW
16.1 Place of performance and place of jurisdiction for deliveries and payments (including actions on bills of exchange) as well as all disputes arising between the parties shall be the registered main office of the seller, insofar as the buyer is a merchant, a legal entity under public law or a special fund under public law. However, the seller is also entitled to sue the buyer at their place of business.
16.2 The relations between the contracting parties shall be governed exclusively by the laws of the Federal Republic of Germany to the exclusion of the UN Convention on contracts for the international sale of goods.
TEOMA Europe GmbH, Vogelskamp 118, 40822 Mettmann.