Terms and conditions

General Terms and Conditions of Business of Georg Pagina GmbH & Co. KG

1. SCOPE OF APPLICATION

 

1) Unless explicitly agreed otherwise, the following “General Terms and Conditions of Business” (GTCs) shall apply to all contracts, deliveries and other services of the Seller in business relationships with entrepreneurs as defined by Section 14 of the German Civil Code (BGB), legal persons under public law or special funds under public law (jointly “Customers”). They shall apply in addition to the customs of the timber industry (“Tegernseer Gebräuche” code of practice) and the trade customs of the German Timber Trade Federation (BD Holz – VDH) e.V., model contract “Germania 1998”.

 

2) Any general terms and conditions of the buyer which deviate from, contradict or supplement the GTCs of the Seller only apply and become a part of the contract if the Seller has expressly agreed to them in writing in each individual case. This requirement of consent shall apply in any case, for example, including if the Seller provides the performance to the buyer without reservation in the knowledge of the buyer’s general terms and conditions of business.

 

3) These GTCs shall become part of the contract within the framework of an ongoing business relationship between merchants, even if the Seller has not expressly referred to their inclusion in individual cases.

 

4) Any individual agreements with the buyer made in the individual case (including ancillary agreements, supplements and amendments) shall always have priority over these GTCs. A written contract or the Seller’s written confirmation shall be decisive for the content of such agreements, subject to any evidence to the contrary.

 

5) Any legally relevant declarations and notices to be given by the buyer to the Seller after conclusion of the contract (e.g. specification of deadlines, notices of defects, declarations of rescission or reduction) must be made in text form to become effective.

 

 

2. OFFERS/CONCLUSION OF THE CONTRACT

 

1) All offerings contained in the Seller’s catalogues and sales documents, as well as – unless expressly designated as binding – on the Internet, are always subject to change and non-binding. They are only to be understood as an invitation to submit offers.

 

2) Orders are deemed to be accepted, if they are confirmed by the Seller or if they are fulfilled immediately upon receipt of the order.

 

3) Objections to the Seller’s letter of confirmation must be received by the Seller immediately, at the latest within 3 working days after receipt of the letter of confirmation, in order to be effective. Otherwise, the goods are considered ordered as stated in the confirmation.

 

4) If, after conclusion of the contract, the Seller becomes aware of facts, in particular default of payment in respect of earlier deliveries, which, according to the best judgement of a prudent businessman, indicate that the claim to the purchase price is endangered by the buyer’s lack of ability to pay, the Seller shall be entitled, after setting a reasonable deadline, to demand from the buyer, at the latter’s option, payment concurrently or corresponding securities and, in the event of refusal, to withdraw from the contract, whereby the invoices for partial deliveries already made shall become due immediately.

 

 

3. DELIVERY, TRANSFER OF RISK, DEFAULT

 

1) Delivery times and deadlines are subject to timely delivery by the Seller’s own contractors. The Seller’s delivery dates shall not apply if correct and punctual delivery by the Seller’s contractors has not been effected.

 

2) The risk of accidental loss and accidental deterioration of the goods shall pass to the buyer no later than upon delivery. In the event of a sale by dispatch, the risk of accidental loss and accidental deterioration of the goods as well the risk of default shall pass upon the delivery of the goods to the forwarding company, to the carrier or to the person or institution executing the shipment.

 

3) Partial deliveries to a reasonable extent are permitted.

 

4) The delivery period will be agreed upon individually or specified by the Seller upon acceptance of the order. If no delivery date is indicated in the order, it shall be agreed upon individually in writing after conclusion of the contract.

 

5) If the Seller cannot meet binding delivery deadlines for reasons for which it is not responsible (non-availability of performance), it will notify the buyer thereof immediately and at the same time inform the buyer of the expected new delivery deadline. If the performance cannot be provided within the new delivery period, the Seller is entitled to withdraw from the contract in whole or in part; the Seller will immediately reimburse any consideration already provided by the buyer. A case of non-availability of performance in this sense shall be deemed to be, in particular, non-timely delivery by the Seller’s contractors, if neither the Seller nor its contractor is at fault or if the Seller is not obliged to procurement in individual cases. The provisions of the model contract “Germania 1998” shall apply accordingly.

 

6) In the event of a delay in delivery, the buyer shall be obliged, at the request of the Seller, to declare in writing within a reasonable period whether it still insists on delivery or whether it wants to withdraw from the contract due to the delay and/or claim compensation of damages in lieu of performance.

 

7) If the Seller is in delay with delivery, the buyer can demand lump-sum compensation for the damage incurred due to delay. The lump-sum compensation shall amount to 0.5% of the net price (delivery value) for each completed calendar week of delay, but in total no more than 5% of the delivery value of the goods delivered late. The Seller reserves the right to prove that the buyer did not suffer any damage at all or only a considerably lower damage than the above lump sum.

 

8) The rights of the buyer according to clause 7 of these GTCs and the legal rights of the Seller, especially in the case of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or subsequent performance), remain unaffected.

 

 

4. PRICES, TERMS OF PAYMENT

 

1) Unless otherwise agreed, the Seller’s prices valid at the time of conclusion of the contract shall apply in each case, namely ex warehouse (plus statutory VAT), and the purchase price shall be due immediately without deduction upon receipt of the goods.

 

2) If buyer and Seller participate in a company direct debit scheme, it is sufficient if the buyer receives the prenotification relating to the direct debit amount and the due date one day before the due date.

 

3) The Seller is entitled, including in the framework of an ongoing business relationship, at any time to carry out a delivery in whole or in part only against advance payment. The Seller shall declare a corresponding reservation at the latest with the confirmation of order.

 

4) In the event of late payment, interest will be charged at the respective bank rates for overdrafts, but at least the statutory default interest. Any discounts agreed upon will not be granted if the buyer is in arrears with the payment of earlier deliveries. Discount periods begin to run from the invoice date.

 

5) If the buyer defaults on payment by means of a reminder (Section 286 (1) BGB) or does not honour a bill of exchange when due, the Seller is entitled to take back the goods or demand return of the goods after a prior reminder. The Seller can also prohibit the removal of the delivered goods. Taking back the goods shall be deemed to be a withdrawal from the contract.

 

6) Refusal or retention of payment shall be excluded if the buyer was aware of the defect or other reason for complaint when the contract was concluded. This also applies if the buyer was not aware of the defect due to gross negligence, unless the Seller has fraudulently concealed the defect or other reason for complaint or has 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 case of a dispute, the amount will be determined by an expert to be appointed through the Working Group of Wood Experts in GD Holz. This expert shall also decide on the allocation of the costs of his/her involvement at reasonable discretion. To determine the expert, the list of experts valid at the time of the complaint shall apply.

 

7) Offsetting and retention are only permitted against undisputed or enforceable claims.

 

8) If it becomes apparent after the conclusion of the contract (e.g. through an application for opening insolvency proceedings) that the Seller’s claim to the purchase price is at risk due to the buyer’s insufficient ability to pay, the Seller is entitled to refuse performance and – if applicable, after setting a deadline – to withdraw from the contract in line with the statutory provisions (Section 321 BGB). In the case of contracts for the production of non-fungible items (tailor-made products), the Seller may declare withdrawal immediately; this shall not affect the statutory provisions concerning cases where it is not necessary to specify a deadline.

 

 

5. PROPERTIES OF THE WOOD

 

1) Wood is a natural product. Its natural properties, individual differences and characteristics should therefore always be taken into account. In particular, the buyer should take into account the biological, physical and chemical properties when purchasing and using the products concerned.

 

2) The range of natural differences in colour, structure and other features within each type of wood is part of the properties of wood as a natural product and cannot be used as a basis for complaints or liability claims.

 

3) The buyer should seek expert advice if need be.

 

 

6. NOTICE OF DEFECTS, WARRANTY, LIABILITY

 

1) The properties of the goods, in particular quality, type and dimensions, shall be based on the agreements between the parties. All product descriptions and article designations which are the subject of the individual contract are deemed to be an agreement on the quality of the goods; it makes no difference whether the product description originates from the buyer, the manufacturer or the Seller. In the absence of such an agreement, the applicable DIN and EN standards as valid from time to time shall apply.

 

Declarations of conformity and CE markings do not constitute independent guarantees. The risks of suitability for the intended purpose and for use risks lie with the buyer.

 

2) For defects within the sense of Section 434 BGB, the Seller shall only be liable as follows:

 

The buyer must check the goods received immediately for their correct quantity and quality. Apparent defects must be reported in writing to the Seller within 14 days. In the event of mutual commercial transactions between traders, the regulations of Sections 377, 381 of the German Commercial Code (HGB) shall not be affected. In addition, reference is made to the “Tegernseer Gebräuche” code of practice and the model contract “Germania 1998”.

 

3) If the buyer identifies any defects in the goods, it is not entitled to make any dispositions of the goods, which means that they may not be divided, resold or further processed, until the parties have agreed on the handling of the complaint or until preservation of evidence has been secured by involving an expert from the Working Group of Wood Experts of the trade association GD Holz. The provisions in clause 4, no. 6), second paragraph of these GTCs shall apply accordingly.

 

4) In the event of justified complaints, the Seller is entitled to determine the type of subsequent performance (substitute delivery, rectification of defects), taking into account the type of defect and the justified interests of the buyer. The Seller is entitled to make the subsequent performance owed dependent on the buyer paying the purchase price due. However, the buyer is entitled to retain a part of the purchase price, which is reasonable in relation to the defect.

 

5) The buyer must notify the Seller as soon as possible in writing upon being made aware of any warranty claim by an end user.

 

6) The buyer shall give the Seller the time and opportunity required for the subsequent performance owed, in particular hand over the rejected goods for inspection purposes. In the event of a substitute delivery, the buyer must return the defective item to the Seller in accordance with the statutory provisions.

 

7) Claims for defects of quality expire after 12 months. This does not apply if the statutory provisions of Section 438 (1) no. 2, (buildings and things for buildings), Section 479 (1) (indemnification claim) and Section 634 a) (1) no. 2 (constructional defects) of the German Civil Code require any longer periods.

 

8) The place of performance for subsequent performance shall be the Seller’s main place of business.

 

9) If goods with non-apparent defects at the time of the passing of risk to the buyer were installed in or attached to another item in accordance with their nature and intended use, the Seller shall bear the necessary expenses for the removal of the defective goods and the installation or attachment of the repaired or newly delivered item as well as the expenses for transport, travel, labour and material costs necessary for the subsequent performance.

 

 

7. LIMITATION OF LIABILITY

 

1) Unless otherwise stated in these GTCs, including the following provisions, the Seller shall be liable for any breach of contractual and non-contractual obligations in accordance with the statutory provisions.

 

2) The Seller shall be liable for compensation of damages – irrespective of the legal grounds – within the scope of fault-based liability in the case of intent and gross negligence. In the event of simple negligence, the Seller shall only be liable subject to a milder standard of liability in accordance with statutory provisions (e.g. same care as in the Seller’s own affairs),
1. for damage due to a loss of life, limb or health, and
2. for damage resulting from a more than insignificant breach of an essential contractual obligation (obligation the fulfilment of which is a prerequisite for the proper execution of the contract and on the compliance of which the contracting partner regularly relies and may rely); in this case, however, the Seller’s liability is limited to compensation of the foreseeable damage typical for such types of contracts.

 

3) The limitations of liability resulting from clause 7.2. shall also apply to breaches of duty by or in favour of persons for whose fault the Seller is responsible according to statutory provisions. They do not apply insofar as the Seller has fraudulently concealed a defect or has assumed a guarantee for the quality of the goods as well as for claims of the buyer under the Product Liability Act.

 

4) Due to a breach of duty which does not consist of a defect, the buyer may only withdraw from or terminate the contract if the Seller is responsible for the breach of duty. A free right of termination of the buyer (in particular according to Sections 651, 649 BGB) is excluded. In addition, the statutory prerequisites and legal consequences shall apply.

 

 

8. STATUTE OF LIMITATIONS

 

1) The general limitation period for claims arising from defects of quality and defects of title shall be one (1) year from delivery, notwithstanding Section 438 (1) no. 3 BGB. The period of limitation begins to run upon acceptance, if agreed upon.

 

2) If the goods are a building or an item that has been used for a building in accordance with its normal use and has caused its defectiveness (building material), the limitation period in accordance with the statutory regulation is five (5) years from delivery (Section 438 (1) no. 2 BGB). The further statutory special regulations on the statute of limitations (in particular, Section 438 (1) no. 1, (3) and Sections 444, 479 BGB) remain unaffected.

 

3) The foregoing limitation periods of the law on the sale of goods shall also apply to contractual and non-contractual claims for damages of the buyer, which are based on a defect of the goods, unless the application of the regular statutory limitation period (Sections 195, 199 BGB) would lead to a shorter limitation period in individual cases. The buyer’s claims for damages in accordance with clause 7, no. 2), sentence 1 and sentence 2 a) of these GTCs as well as claims for damages under the Product Liability Act shall become statute-barred in accordance with the statutory provisions.

 

 

9. RESERVATION OF TITLE

 

1) The Seller reserves title to the goods until payment of the purchase price in full.

 

2) If the reserved goods are processed by the buyer to a new moveable item, processing shall be effected for the Seller, without the latter assuming any obligations as a result; the new item shall become the property of the Seller. If the goods are processed together with goods not belonging to the Seller, the Seller shall acquire co-ownership in the new item in proportion of 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 Sections 947, 948 BGB, the Seller shall acquire co-ownership in accordance with the statutory provisions.
If the buyer acquires sole ownership by combining, mixing or blending, the buyer hereby assigns co-ownership to the Seller in proportion of the value of the reserved goods to the other goods at the time of combining, mixing or blending. In these cases, the buyer shall store free of charge the item owned or co-owned by the Seller, which is also deemed to be reserved goods within the meaning of the above conditions.

 

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 ranking priority over the rest; the seller accepts the assignment. The value of the reserved goods is the invoice amount charged by the Seller, which, however, is not taken into account if there are any rights of third parties. If the reserved goods resold are co-owned by the Seller, the assignment of claims shall extend to the amount corresponding to the Seller’s share in the co-ownership.

 

4) If reserved goods are installed by the buyer as an essential component in an immoveable item (a) of a third party or (b) of the buyer, the buyer hereby now assigns the assignable claims for remuneration arising against (a) the third party or (b) the buyer in the event of the sale to the amount of the value of the reserved goods, with all ancillary rights, including such for the granting of a lien in rem, with priority over the rest; the Seller accepts the assignment. Clause 9, no. 3), sentences 2 and 3 shall apply accordingly.

 

5) The buyer is only entitled and authorised to resell, use or install the reserved goods in the normal course of business and only under the condition that the claims within the meaning of clause 9, no. 3) or no. 4) are actually transferred to the Seller.

 

The buyer is not entitled to dispose of the reserved goods in any other way, in particular not to pledge them or assign them as security.

 

6) The Seller authorises the buyer, subject to revocation, to collect the claims assigned in accordance with clause 9, no. 3) and no. 4). The Seller will not make use of its own authority to collect as long as the buyer meets its payment obligations, also towards third parties. At the request of the Seller, the buyer shall name the debtors of the assigned claims and notify them of the assignment; the Seller is authorised to notify the debtors of the assignment itself.

 

7) The rights to resell, use or install the reserved goods or the authorisation to collect the assigned claims shall expire in the event of suspension of payments and/or application for the opening of insolvency proceedings. This does not apply to the rights of the insolvency administrator.

 

8) If the value of the security provided exceeds the total value of the claims (reduced by advance and part payments, if applicable) by more than 20%, the Seller undertakes, at its own discretion, to transfer back or release security accordingly.

 

 

10. FINAL PROVISIONS

 

1) The place of performance and place of jurisdiction for deliveries and payments (including lawsuits involving checks and bills of exchange) as well as for all disputes arising between the parties shall be the Seller’s main place of business, provided that the buyer is a merchant, legal person under public law or special assets under public law.

 

However, in all cases, the Seller shall also be entitled to bring an action at the place of performance of the delivery obligation in accordance with these GTCs or a prior individual agreement, or at the buyer’s general place of jurisdiction. Priority statutory provisions, in particular those concerning exclusive jurisdiction, shall remain unaffected.

 

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.

 

3) The buyer is hereby informed that the Seller will collect, process and use the necessary personal data obtained in the course of the business relationship in accordance with the provisions of the applicable European and German data protection laws for the purpose of conducting business.

 

4) Should any provision of these GTCs be invalid (e.g. unlawful or otherwise unenforceable), such invalidity shall not affect the validity of the remaining provisions. The invalid provision shall be replaced by a mutually agreed legally valid provision that has a similar and valid economic and legal effect. The same applies to any regulatory loopholes or omissions in these GTCs.