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Conditions générales de vente

§ 1 - Formation of the agreement

1. The present and the follow-up business transactions realized with the customer shall be exclusively based on the present Terms and Conditions. Any differing Terms and Conditions of the customer shall not be valid, unless they have been individually agreed upon. Any differing Terms and Conditions of purchase of the customer shall not be valid even if they are contained in a confirmation letter of the purchaser following our order confirmation and we do not object to it. Our silence shall mean refusal. Our Terms and Conditions shall be considered as accepted at the latest upon the receipt of the goods by the customer, in particular in case the order was placed by telephone. Any differing stipulations individually agreed upon need to be done in writing.

2. Delivery contracts shall be entered into by our written order confirmation following a written order or delivering the goods. Any oral, in particular any additional agreements made by telephone, as well as any agreements concerning the execution of the order, shall require our separate written confirmation in order to be valid.

3. The documents belonging to the offer such as illustrations, drawings, weights and dimensions shall be only approximations, unless they have been expressly qualified as binding. Especially as far as dimensions of wood as a natural product are concerned, it is agreed upon that even exactly indicated dimensions are subject to the usual tolerances and variations resulting from the quality of wood as a natural product. We reserve the right of ownership and the copyright of cost estimates, drawings and any other documents; they must not be made available to third parties.

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§ 2 - Delivery

1. The scope of delivery shall be determined by our written confirmation of order.

2. Unless the contract item is considerably modified and if the customer can be expected to accept the modifications, we reserve the right to carry out, during the term of delivery, changes of the construction or of the form resulting from technical improvements or prescriptions of the legislator.

3. In case we receive subsequently indications of the customer's irregular payment transactions, of the filing for or the opening of a moratorium or insolvency proceedings or of any other deterioration of his economic situation, we shall be entitled to carry out the delivery only against the payment of the purchase price in advance or against cash on delivery.

4. In case the receipt of the goods is refused (also in case they are delivered against cash on delivery), any transport and postage charges as well as any additional charges shall be borne by the customer. Costs of storage and dispatching of ready shipments shall be invoiced at a general rate of 0.5 % of the value for each commenced month in case the customer delays the receipt. The customer shall be free to give evidence of the fact that no damage incurred or only to an extent smaller than the aforementioned lumpsum. We shall be free to give evidence of the fact that the damage exceeds the above mentiond lumpsum.

5. The scope of delivery and the contract items may result - beside paragraph 1 - from additional specifications to the extent they became a subject matter of the contractual agreement.

6. We reserve the right to provide a performance of equivalent quality and price. We reserve as well the right not to provide the promised performance in case of its non-availability.

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§ 3 - Delivery time and receipt

1. Any delivery times shall be non-binding. To the extent we are correctly and timely supplied, however, we shall observe the delivery times as far as possible.
In the event of problems as to the availability of the goods or as to their timely availability, we shall be obliged to notify the customer immediately. In case of a delay exceeding six weeks, both contracting parties shall be entitled to withdraw from the agreement by notifying the other party in writing. In this case, performances that have already been granted have to be reimbursed. There shall be no further claims, in particular no claims for damages. To the extent the customer's order contains a fixed deadline for the delivery and if we mentioned only an approximate date or a calendar week in our order confirmation, this period shall be considered as the agreed delivery date, unless the customer objects to that within one week after receipt of our order confirmation.

2. The time of delivery shall begin with the dispatching of the order confirmation, but not before the submission of the documents, approvals, releases to be possibly provided by the customer and not before the receipt of an agreed down payment.

3. The time of delivery shall be considered as complied with, if until its expiration the readiness for shipment of the goods has been notified or if the contract item left our premises.

4. The delivery time shall be extended in case of measures in the frame of labour disputes, in particular strikes and lock-outs and upon the occurence of unanticipated hindrances beyond our control, such as interruption of service, delays in the delivery of essential materials, to the extent evidence can be given of such hindrances' having a considerable impact on the delivery of the contract item. The same shall apply in case these circumstances are affecting our subcontractors. The delivery time shall be extended according to the duration of such measures and hindrances. We shall not be answerable for the aforementioned circumstances either in case they arise during a delay that is already existing. In important cases, we shall notify the customer of the beginning and the end of such hindrances as soon as possible.

5. The observance of the delivery time shall be based on the customer's fulfilling his contractual obligations, also as far as other business transactions concluded with us are concerned.

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§ 4 - Packaging and shipment

1. The shipment of the goods (and of any possible return shipments) shall be realized at the customer's cost and risk, unless otherwise provided. This shall apply as well to our delivering the goods with our own vehicles. In each case, we shall be entitled to invoice supply costs up to the amount of the charges that would incur in case another kind of shipment was choosen.

2. The choice of the type of shipment shall be effected at our discretion. We do not assume any liability as to the cheapest way of shipment.

3. We reserve the right to execute the shipment not from the place of fulfillment according to § 12 para. 1, but from another place of our choice.

4. Packaging costs shall be invoiced by us separately.

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§ 5- Prices

1. The prices are to be understood ex manufacturer's works, without cash discount and without any other kind of discount. The value-added tax in its respectively legal amount shall be added to the prices.

2. The prices of our price lists and catalogues shall be non-binding. We shall always invoice the prices that are valid on the date of delivery. We shall in particular be entitled to price adjustments in case the prices of the raw materials we need and the related additional charges such as import duties etc. increase. In the event the price increase exceeds 25% of the last valid price, the customer shall be entitled to withdraw from the agreement.

3. To the extent our prices and invoices show cost of tools as a price component, the payment of these items shall not entitle the customer to any rights of the tools. These tools are just tools provided for the supply of the customer and the respective price components are parts of the overhead costs related to the customer or the product falling to the customer and invoiced to him. To the extent the customer's name is mentioned on the tools, this is just meant to simplify the attribution of the means of production to the production for the respective customer and does not create the customer's right of the tools, in particular no right of property. Nor is a constructive possession being created.

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§ 6- Reservation of ownership

1. We reserve the right of ownership of the goods supplied with regard to any debt claims resulting from the present and future business relationship with the customer (current account reservation). The integration of individual debt claims into a current invoice and their balancing out and their acknowledgement do not annul the reservation of ownership.

2. We shall be entitled to take our conditional commodities from the customer during his usual business hours in the event he does not comply with his obligations towards us, in particular in case his payments are delayed, and to enter for this purpose any storage and office rooms of the customer. This act of taking away does not constitute unlawful interference with possession.

3. In case our goods are processed or combined with other products, we shall acquire the joint ownership of the items resulting from processing or combination, and the possessor shall keep it in custody free of charge with the due diligence of a prudent businessman. Our part in the joint ownership shall be defined according to the fraction corresponding to the value of our goods in proportion to the value of the item that has been created.
In case the purchaser acquires by the combination of the products the sole ownership, he assigns to us right now the joint ownership according to the proportion of the value of the conditional commodities compared to the value of the item that has been created. As to the resale, the below mentioned para. 4 shall apply; the debt claim resulting from the resale or from any other legal title is assigned to us right now in the amount of the above mentioned fraction.

4. In case the customer sells the conditional commodities alone or together with other goods that do not belong to us, the customer right now assigns to us the debt claim resulting from the resale in the amount of the value of the conditional commodities with any ancillary rights and priority above the rest.
We accept the assignment. The value of the conditional commodities shall be our invoice amount.

5. The customer shall be entitled to resale, use and to install the conditional commodities only within his usual and due course of business. The customer shall not be entitled to dispose of the conditional commodities in any other way, and shall in particular not be entitled to pledging and assigning them as security. In case of payment by cheque or bill of exchange, the reservation of ownership shall extinguish only upon the encashment of the bill of exchange / cheque and the crediting of the invoice amount.

6. The authorization to resale, use or install the conditional commodities shall not be valid if the customer concludes an agreement according to the conditions of a third party that do not entitle him to assign to us debt claims to third parties.

7. Subject to revocation, the customer entitles us to collect the assigned debt claims. We shall not make use of our authorization to collect as long as the customer complies with his duties to pay. Upon our request, the customer shall give us any required information as to the stock of the goods that are our property and the debt claims and rights assigned to us and he shall inform his clients about the assignment. We shall be entitled, but not obliged, to inform the customer's clients at any time about the assignment and to assert assigned debt claims in our own name. The enforcement of the assigned rights shall be done at the customer's expenses and risk; however, we shall not be obliged to do so and the customer shall not be able to hold us liable for that.

8. The customer shall notify us immediately of any third-party compulsory execution measures as to the conditional commodities or the assigned debt claims by submitting to us the documents that are required for objection.

9. We undertake to disclose the guarantees we are entitled to upon the customer's request to the extent the value of the debt claims they are meant to guarantee, in case they have not been settled yet, exceed more than 20 %.

10. The pledging and assigning of the conditional commodities as security or of the rights we are entitled to as well as any other dispositions of the customer affecting our rights shall not be admissible.

11. In the event a third party is getting access to the conditional commodities, to the debt claims assigned by us or the rights that have been created according to the preceding paragraphs, the customer shall make it aware of our ownership and notify us immediately by submitting any documents required for intervention.
The taking back of the conditional commodities and their pledging by us shall not constitute a withdrawal from the agreement; the said measures are only meant to guarantee our claims.
We do not agree to the resale of the conditional commodities in case judicial conciliation or insolvency proceedings are opened.

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§ 7- Payments

1. Unless otherwise agreed upon, invoices have to be settled at the latest 30 days after the invoice date.

2. Any payments have to be made to our location, free of charge. To the extent additional charges are charged to us by the bank or any other institutes on the occasion of the customer's payment, they shall be borne by the customer and we shall charge them to him.

3. The payment by letter of exchange shall be excluded, unless otherwise expressly agreed upon in writing. The exceptional acceptance of letters of exchange shall be considered as a deferment of the purchase price only to the extent no negative changes occur or become known as far as the economic situation of the customer is concerned. The payment by letter of exchange shall not be considered as a cash payment. The discount charges and any other charges related to the letter of exchange shall be paid immediately by the customer; in any case upon submission of the letter of exchange. We shall not assume any liability as to the timely presentation, notice of dishonor and / or charges for returned letters of exchange. The acceptance of cheques shall not be done in place of performance, but on account of performance.

4. We shall invoice interests on defaulted payment at 8 % p.a. above the base interest rate. They can be calculated at a higher or lower percentage, in case we can give evidence of a burden at a higher interest rate or if the customer can give evidence of a smaller burden.

5. The customer shall not be entitled to retain payments on account of any of his counter-claims that have not been recognized by us or that have not been validly determined, and shall not be entitled to balance them against such counter-claims.

6. In the event the terms of payment are not observed or if we become aware of facts that would suggest that our claims for the purchase price are endangered due to the customer's liquidity problems, we shall be entitled to carry out further deliveries only against advance payment or the giving of securites.

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§ 8 - Passage of risk

In any case, the risk shall pass on to the customer when the consignment leaves our premises or at the moment the shipment is delayed, the goods being ready for shipment, upon the customer's request. We shall not cover any transport damages or the loss of the goods. To the extent claims can be asserted towards liable third parties and/or insurers (insurances only upon request of the customer and at his expenses), the customer's claim towards us shall be limited to the assignment of the claim to him.

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§ 9 - Warranty

1. To the extent we did not produce ourselves the goods delivered to the customer, but bought them from a subcontractor, we shall assign to the customer any warranty claims towards the subcontractor. The customer shall be obliged to assert the assigned claims at our subcontractor. To the extent the claims cannot be enforced out-of-court, our warranties shall be governed by the provisions of the below mentioned paragraph 2.

2. The quality of the supplied goods shall be that of the product description or the merchantable quality. Declarations as to the quality shall not represent a guarantee, unless expressly designated as such. In general, no guarantee shall be assumed beside the warranty according to the present provisions and pursuant to law.
The customer shall check the goods received immediately for defects and shall examine their quality. Defects have to be notified to us in writing within one week after delivery. Independently, the customer's right to lodge a complaint shall expire, in case he already changed, processed or combined the goods bought from us already before the expiration of the aforementioned period. Any further legal provisions shall remain unaffected. Hidden defects have to be notified to us in writing at the latest within one week after their discovery.
In the event a defect is discovered, the customer shall provide us with the goods he complains about at the latest one week after he sent his written complaint in order to enable us to examine them. In case he culpably refuses to do so, any claims shall be cancelled.
The aforementioned duty to notify shall apply as well in case the buyer notified the customer of defects of the goods or parts supplied by us.
If the customer's complaint is justified, he shall be entitled to ask for rework or a substitute delivery as an additional performance. We shall be entitled to refuse the kind of additional performance the customer chose in case it can be realized only with unreasonable costs or if the kind of additional performance the customer chose is more expensive than the other one, but does not lead to considerable inconvenience for the customer compared to the other possibility of additional performance. In the event of additional performance by rework, our right to rework shall be limited to three trials as regards one and the same defect and to a total of six trials with regard to the whole number of defects.
In case the purchased item has to be brought, after the execution of the additional performance, to another place than the initial place of delivery, the additional costs incurred shall be borne by the customer. The same shall apply in case the customer returns to us the defective item from a place other than his location / the place of delivery for the purpose of additional performance.
The customer shall be entitled to assert any further warranty claims only after having agreed with us a reasonable period for the execution of the rework or the substitute delivery and in case this period expired without results.
In case the defect is of insignificant importance only, the customer's right to withdraw from the agreement shall be excluded. The right of a reduction of the purchase price shall be unaffected.

3. There shall be no warranties in case

a) the defect has to be attributed to improper use, operation, service or insufficient maintenance, erroneous assembly and putting into service or to violent effects, to any other external influences or to storage or transport related circumstances to the extent we are not answerable for,

b) the defect has been caused by an improper modification of the contract item, in particular the use of inappropriate, especially third-party spare parts, and if the damage is causally connected to the modification or use,

c) the defect is due to the characteristics of wood as a natural product and the natural changes of the raw state resulting thereof both during and after its processing, even in case such effects become manifest only in the final product,

d) the defect has been caused by the quality or defects of partial products or components of our products (e.g. HPL), that the customer defined to us and that he bindingly asked us to use.

Natural wear and tear and damages that can be attributed to negligent or improper manipulation or treatment shall be excluded from warranty.

4. The goods complained about have to be sent to us together with the original delivery note or a photocopy of it. In the frame of negotiations about complaints we do not renounce to the objection that the complaint was not lodged in time or not in the due manner.

5. The customer shall be entitled to withhold payments by invoking claims resulting from a defect only to the extent that this is reasonable according to good faith, taking into consideration the defect he complained about, i. e., up to a maximum of the partial amount of the purchase price of the item that he exactly qualified to be defective.

6. In case the customer or a third party executes improper rework, we shall assume no liability as to the consequences resulting thereof. The same shall apply to modifications of the contract item that are carried out without our previous written approval.

7. In addition, paragraph 10 shall apply to claims for damages.

8. To the extent the scope of delivery contains software or any other goods or rights that might be protected by copyright, the customer shall be granted a non-exclusive right to use the supplied software including the related documentations.
The customer shall be entitled to use and process the software only in the extent legally admissible and shall not remove the manufacturer's data and shall not modify it without our previous written approval.
The customer shall not be entitled to assign the software or its rights to a third party - e.g., by license - without our previous written approval.

9. The warranty period for material defects shall be one year as of the delivery of the goods. This shall not apply in case we are liable due to intention or to the fraudulent concealment of a defect that is known to us; in these cases, we shall be liable according to the legal stipulations. A shorter period shall apply if the defect is related to a product the wear and tear of which regularly and typically becomes manifest after a period of less than one year.

10. The customer shall not be entitled to use advertising measures that have not been approved by us in the frame of the distribution of the goods produced by us. In case clients of the customer assert warranty claims based on the non-conformity of the goods bought as compared to the advertisement of the distribution partners, the latter shall not be entitled to deduce claims towards us from this circumstance.

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§ 10 - Liability

1. 1. We shall be liable for the customer's damages independently of the legal argument, in particular due to non-compliance with duties under the agreement and due to unauthorized acts, only in the case of intention and gross negligence, unless

a) liability is provided for the injury of life, the body or of health,

b) liability is provided for the con-compliance with essential contractual duties.

2. The claim for damages due to the non-compliance with essential contractual duties, however, shall be limited to the damages that are regulary predictable and typical for the agreement.

3. The same shall apply to cases of liability for defects.

4. The restrictions of liability mentioned in §§ 9 and 10 shall apply as well with regard to the possible liability due to erroneous advice, incorrect assembly instructions and any other non-compliance with accessory obligations.

5. Any further claims for damages shall be excluded.

6. § 9 para. 9 shall apply accordingly to the prescription of the aforementioned claims.

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§ 11 - Offset / right of retention

1. The customer shall be entitled to set off counter-claims against our debt claims only in case the counter-claims are uncontested or have been validly determined by court.

2. Unless otherwise provided in the present General Standard Terms and Conditions, the same shall apply as well to the assertion of rights of retention.

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§ 12 - Place of fulfilment and place of jurisdiction

1. Bad Wörishofen…. shall be the place of fulfilment. Differing from that stipulation, we shall be entitled in individual cases to define the place of production of works to be supplied as the place of performance.

2. As regards any litigation resulting from the contractual relationship and in case the customer is a full merchant, a legal person under public law or a special fund under public law, actions have to be lodged at the court that is competent for our headquarters. We shall also be entitled to lodge an action at the place of the customer's headquarters.

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§ 13 - Applicable law

Exclusively German law shall be applicable to the exclusion of the laws on the international purchase of mobile goods, even in case the customer's company seat is located abroad.

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§ 14 - Agreements on the form

Any modifications, amendments and ancillary agreements relating to the present General Terms and Conditions and to individual agreements need to be done in writing in order to be valid. This shall apply even in case the stipulation prescribing the written form is to be cancelled in the case of modifications.

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§ 15 - Miscellaneous

1. The assignment of rights and duties of the customer resulting from the agreement concluded with us shall require our written consent in order to be valid.

2. Should individual provisions of the preceeding GTC partially or fully be or become void, contestable or invalid, this shall not affect the validity of the remaining provisions of the agreement and of the agreement as a whole. The contracting parties shall then execute the agreement with a valid substitute regulation coming next to the economic purpose intended by the cancelled provision.

Version of : 14.02.2003 - Bad Wörishofen

Conditions générales de vente

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