General Terms and Conditions of Delivery of Bremer Holzwerke GmbH
1. general provisions
1.1 These Terms and Conditions shall apply to all deliveries and other services provided by us to entrepreneurs within the meaning of § 14 BGB. They are an integral part of all declarations of intent, in particular contract offers and contract acceptances. These terms and conditions shall apply exclusively unless individual provisions have been made.
1.2 We do not recognize any contractual terms and conditions of the customer that deviate from or are additional to these terms and conditions. They shall not become part of the contract even if we carry out the delivery or service without any special reservation in the knowledge of these conditions.
1.3 These Terms and Conditions shall also apply to all future transactions with the Customer, even if we do not refer to the validity of the Terms and Conditions of Sale again.
1.4 Individual agreements with the customer must be made in writing or confirmed in writing.
2. offers, conclusion of contract
2.1. 2.1 In case of doubt, we do not submit legally binding offers, but only requests to the customer to submit an offer. In the event of an order by the customer, the contract shall only be concluded when we confirm the customer’s order in writing or deliver the goods. The customer waives the receipt of our declaration of acceptance. If, by way of exception, our declaration undoubtedly constitutes an offer in the legal sense, it shall be subject to change without notice and without being bound by an acceptance period, i.e. we shall be entitled to revoke the offer until it has been accepted by the customer, unless a binding period for the offer is expressly stipulated.
2.2. 2.2 There are no verbal agreements or collateral agreements.
3. prices, price adjustments
3.1. 3.1 All prices quoted by us are in Euro plus the respective statutory value added tax and shall apply, unless otherwise agreed, “net ex works”, i.e. excluding packaging, loading, insurance, customs duties and other charges, transport costs and value added tax payable on the goods.
3.2. 3.2 The prices quoted for our delivery are based on the circumstances prevailing at the time of order confirmation. In the event of unforeseen cost increases occurring after conclusion of the contract and beyond our control, e.g. due to price increases by our suppliers, increases in taxes, freight, bunker surcharges, customs duties or other public charges, increases in the price of raw materials or currency fluctuations, we shall be entitled to pass on the price increase to the customer. This shall also apply if the costs have not been calculated separately or shown separately in addition to the price of the goods. If the price increase exceeds 15% of the net price, the customer is entitled to withdraw from the contract.
4.1. 4.1 We shall endeavor to deliver as quickly as possible. Binding delivery deadlines must be agreed in writing. Delivery dates or periods specified by the customer shall only be binding if they have been confirmed by us in writing. Unless expressly agreed otherwise, delivery periods shall commence upon conclusion of the contract and complete technical clarification of the execution of the order. Delivery dates refer to the date of dispatch of the goods or – in case of delivery ex works – notification of readiness for collection.
4.2. 4.2 Compliance with deadlines for deliveries shall be subject to the timely fulfillment of all necessary cooperative acts, in particular the timely receipt of all necessary information and documents and approvals and releases to be provided by the customer, as well as compliance with the agreed terms of payment by the customer. If these prerequisites are not fulfilled for reasons for which we are not responsible, the deadlines shall be extended accordingly.
4.3. 4.3 If we are obligated to advance performance, we reserve the right to make delivery dependent on collateral or advance payment if circumstances become known after conclusion of the contract that give rise to doubts about the customer’s ability to pay. We shall be entitled to set the customer a reasonable deadline for payment or provision of security. If the customer does not comply with the request within the deadline, we are entitled to withdraw from the contract.
4.4 Our obligation to deliver shall be suspended in cases of force majeure and other circumstances for which we are not responsible. We shall not be responsible for unforeseen circumstances and events for which we are not responsible and which could not have been avoided with the due diligence of a prudent businessman, including war, operational or traffic disruptions, strikes, lockouts, shipping disruptions, official orders, etc., non-delivery by suppliers. In such cases, the delivery period shall be extended accordingly. If the hindrance lasts longer than three months, both parties are entitled to withdraw from the contract. Even before the expiry of this period, one party shall be entitled to withdraw from the contract if it cannot reasonably be expected to continue to adhere to the contract due to the delay in delivery.
4.5. 4.5 Delivery shall be subject to timely and proper delivery by our suppliers.
4.6. 4.6 Partial deliveries are permissible as far as reasonable.
4.7. 4.7 If we are in default of delivery, the customer shall give us the opportunity to make a subsequent delivery within a reasonable period of time. As a rule, a period of grace granted to us must be at least four weeks. In the case of transhipment or direct consignments, the date of the bill of lading shall be sufficient for compliance with the period of grace in the case of shipment by ship and the date of shipment ex works of our upstream supplier in the case of shipment by wagon.
4.8. 4.8 If we are in default, liability for damage caused by delay shall only exist in the event of concrete proof of damage by the customer. Furthermore, our liability for damage caused by delay is limited to 0.5% of the delivery value of the goods in default for each week of the completed delay, up to a maximum of 5% of the delivery value of the goods in default. This limitation of liability shall not apply in the case of intent. The customer shall only be entitled to claims for damages in lieu of performance in accordance with clause 10.
4.9. 4.9 Shipment shall always be at the risk of the customer, even if carriage paid delivery has been agreed. The risk of accidental loss and accidental deterioration of the goods shall pass to the Buyer upon handover to the forwarding agent, the carrier or any other person or institution designated to carry out the shipment. This shall also apply if we take over the transport. The handover is equal if the customer is in default of acceptance.
4.10. 4.10. If the customer wishes to have the goods insured for transport, he must inform us of this in writing. The costs for this insurance shall be borne by the customer.
4.11. 4.11. Unless expressly agreed otherwise, we shall provide the delivery “ex works”. The customer shall be exclusively responsible for the transport including loading and proper transport securing at its own expense.
5. General cooperation obligations of the customer, call orders, default in acceptance, customer’s liability for damages
5.1. 5.1 The Customer shall be obligated to perform all contractually regulated, required or in good faith owed cooperation acts in a timely manner, in particular to obtain all approvals required for the performance and to provide all necessary information and documents and data as well as to ensure the timely availability of competent contact persons.
5.2. 5.2 We shall be entitled to set the customer a reasonable deadline for the performance of an act of cooperation. After unsuccessful expiry of the deadline, we shall be entitled to withdraw from the contract.
5.3 In the case of call orders, the customer shall be obliged to make the call within the agreed periods. If no deadline is specified, we shall be entitled to set a deadline for the call-off to the customer if no call-off is made by the customer within three months.
5.4 If the customer does not perform duties to cooperate or does not perform them in accordance with the contract, if the customer does not make an agreed call, if the goods are dispatched or collected later than the scheduled delivery date at the instigation of the customer or due to circumstances for which the customer is responsible, or if the customer is in default of acceptance due to other circumstances, we shall be entitled to demand compensation for the resulting damages and additional expenses. During the delay in acceptance, we shall be entitled to charge a lump-sum compensation amounting to 0.5% of the respective invoice amount for each full week, but not more than 5% of the respective invoice value. The customer is entitled to prove to us that no or considerably lower damages have been incurred. We reserve the right to prove higher damages. Further rights, in particular the right to withdraw from the contract or to claim damages instead of performance, shall remain unaffected. In such cases, the risk shall pass to the customer upon notification of readiness for shipment.
5.5 During the delay in acceptance, the goods shall be stored at the risk of the customer. There shall be no obligation on our part to insure the goods. We shall be entitled to carry out a self-help sale after prior warning. Beyond the statutory provisions, the self-help sale may also be carried out on the customer’s own initiative at current prices without the mediation of a publicly appointed commercial broker.
5.6 If the customer owes damages instead of performance and the performance is not rendered, we shall be entitled to charge our damages at a flat rate of 15% of the purchase price, unless the customer proves lower damages. We reserve the right to claim higher damages in accordance with the statutory provisions.
6. payment / set-off
6.1. 6.1 Our invoices are due for payment immediately. Deductions, such as cash discounts, are not permitted unless expressly agreed otherwise.
6.2 The customer shall be in default if the respective claim amount is not paid by the agreed payment date. If no date is specified, invoices shall be due for payment immediately and the customer shall be in default if the invoice amount is not paid to our account within 14 days after the due date. The date of receipt of payment by us shall be decisive. An earlier occurrence of default in accordance with the statutory provisions, in particular by reminder, remains unaffected.
6.3 During default in payment, our claims shall bear interest on arrears at the average interest rate charged by German banks for open overdrafts. The customer shall be entitled to prove that no damage or only a significantly lower damage has been incurred as a result of the delay. We reserve the right to claim higher damages. The statutory default interest rate shall be owed as a minimum.
6.4 If the customer is in default of payment or if, after the conclusion of the contract, we become aware of circumstances that give rise to doubts about the customer’s creditworthiness, e.g. default of payment by the customer with other claims arising from the business relationship, cessation of payments by the customer or the dishonor of checks given by the customer, we reserve the right to revoke all deferral agreements and payment terms granted also with regard to all other outstanding claims arising from the business relationship and to declare the claims due immediately, even if we have accepted checks.
6.5 The customer shall only be entitled to rights of set-off and retention if its counterclaims have been legally established, are undisputed or acknowledged. This shall also apply if his counterclaim is based on the same legal relationship.
7. retention of title
7.1. 7.1 We retain title to the delivered goods until the purchase price and all other existing or (at the time of the conclusion of the contract) future claims (including all balance claims from the current account) against the customer arising from the business relationship have been settled in full. Ownership of the goods shall automatically pass to the customer as soon as the purchase price has been paid and no further claims from the business relationship exist (current account reservation).
7.2 The customer shall be entitled to sell or process the reserved goods in the ordinary course of business. A proper business transaction does not exist, for example, if the customer agrees with its purchaser on the exclusion of the assignment of the claims to third parties.
7.3 The right to resell and/or process the goods shall automatically expire if the customer defaults on payment, including other claims arising from the business relationship, or if insolvency proceedings have been applied for against its assets or if it is obliged to apply for insolvency proceedings.
7.4 In the event of a resale of the reserved goods on credit, the customer shall be obliged to sell the goods only against sufficient collateral (e.g. agreement of its own reservation of title, etc.) The customer shall only be permitted to pledge or assign the goods as security with our prior written consent.
7.5 Any processing or transformation of the goods subject to retention of title by the customer shall always be carried out for us as processor within the meaning of § 950 BGB. If the goods are processed, transformed, inseparably mixed or combined with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the goods subject to retention of title (invoice value incl. VAT) to the value of the other processed items at the time of processing, transformation, mixing or combination. If the goods are combined or mixed with an item of the customer which is to be regarded as the main item, so that the customer acquires sole ownership, it is hereby agreed that the customer shall transfer co-ownership of the end product to us on a pro rata basis corresponding to the value of the original materials at the time of the mixing or combination. We accept the transfer of ownership. The customer shall keep the (co-) ownership for us free of charge. The regulations for goods subject to retention of title shall apply accordingly to the products resulting from processing, mixing or combining.
7.6 The customer hereby assigns to us by way of security its claim from the resale of goods subject to retention of title in the amount of the share corresponding to our ownership or co-ownership share in the goods subject to retention of title. Furthermore, the assignment is limited to a maximum of the amount of the claim (including value added tax) to which we are entitled against the customer from the business relationship at the time of the resale, plus a security surcharge of 20%. The assignment shall apply regardless of whether the reserved goods were resold without or after processing or mixing.
7.7 The customer shall be entitled to collect the assigned claims in the ordinary course of business. We shall be entitled to demand that the customer notify its customers of the advance assignment. The authorization to collect shall expire if the customer does not properly meet its payment obligations arising from the business relationship, in particular if it is in default of payment, including with other claims arising from the business relationship, if insolvency proceedings have been filed against its assets or if it is obliged to file for insolvency proceedings.
7.8 In such cases, the customer’s right to possession of the reserved goods shall expire. We shall then be entitled to enter the customer’s premises and take possession of the reserved goods at the customer’s expense. Notwithstanding the customer’s payment and other obligations, we shall be entitled to dispose of the goods subject to retention of title in the best possible way by private sale or by auction after warning and expiry of a reasonable period of time set for the customer. The proceeds of the sale shall be credited to the customer’s liabilities after deduction of the costs incurred for the sale. Any surplus shall be paid to the customer.
7.9 The customer shall provide us with information on the assigned claims and their debtors at any time upon request. If the customer is not entitled to collect the claims himself, he shall provide us with all information and documents required for collection and support us in the collection of the claims.
7.10 The customer is obligated to treat the goods that are (co-)owned by us with care at its own expense, to store them carefully and to insure them adequately against the usual risks (theft, breakage, fire, water) and to provide evidence of the conclusion of the insurance policy upon request. We may at any time require the customer to take an inventory of the goods delivered by us at their respective storage location and to identify the goods as our property. Insurance claims as well as claims against third parties due to damage, destruction, theft or loss of the goods are already now assigned to us by the customer by way of security. We hereby accept this assignment.
7.11 The customer shall notify us immediately upon becoming aware of any third party seizure of the reserved goods and shall provide us with all information and documents necessary for an intervention. The customer shall be liable for the costs incurred for the cancellation of the access, in particular by filing a third-party action, unless they can be obtained from the enforcing creditor.
7.12 We undertake to release securities at the customer’s request if the value of our securities exceeds the claims to be secured by more than 20%. We shall be entitled to select the securities to be released.
8. quality, inspection and complaint obligations
8.1. 8.1 Wood is a natural product. Deviations in structure, grain and color are natural and do not represent defects. Samples and illustrations only reflect the approximate condition. Only the express contractual agreements in accordance with our order confirmation and our product descriptions shall be authoritative for the quality of the goods. Unless it is expressly contractually agreed that the goods comply with certain DIN, gluing or other technical regulations, the delivery shall be free of defects even if such standards are not complied with. As a matter of principle, we do not issue guarantees in the legal sense. A guarantee is only given if it is expressly designated as such. We reserve the right to make technical changes as well as changes in shape, color and/or weight within the bounds of what is reasonable. Unless otherwise agreed, we owe customary quality of our deliveries.
8.2 We do not warrant the suitability of our products for the customer’s intended use unless the intended use has been expressly agreed with us in writing.
8.3 The customer shall be obliged to inspect all deliveries upon receipt and to give notice of any defects in accordance with the following provisions:
8.3.1 The goods shall be inspected upon delivery for transport damage, such as damaged transport packaging, and obvious defects and shortages and, if necessary, noted on the delivery papers. Delivery documents signed off by the customer without reservation shall be deemed proof of complete and visually flawless delivery. A note in accordance with 8.3.1 on the delivery documents shall not release the customer from the obligation to give notice of defects in accordance with clause 8.3.2. Transport persons shall not be entitled to receive notices of defects.
8.3.2 Period for notification of obvious defects: Transport damage and other obvious defects shall be notified by the customer in writing within two working days, calculated from our delivery.
8.3.3 Period for notification of obvious defects: In addition to the obligation to give notice of obvious defects pursuant to Section 8.3.2, the customer shall be obliged to inspect the goods immediately and carefully. Proper examination shall include, among other things, random samples of the wood moisture content of at least 10% of the delivered goods. Unless a shorter period of notice applies in accordance with Section 8.3.2, complaints about the goods must be made in writing within 10 calendar days of delivery at the latest, unless the defect was not recognizable during the inspection. If the defect was not recognizable during the inspection, Clause 8.3.4 shall apply. Any direct delivery to third parties / place of use shall not limit the customer’s obligation to inspect the goods and give notice of defects.
8.3.4 Period for notification of hidden defects: If a defect later becomes apparent which was not recognizable during the inspection, this must be reported in writing within three working days of discovery. In the event of non-compliance with the aforementioned inspection and notification obligations, the delivery shall be deemed to have been approved in accordance with the contract.
8.4 We point out that any defects must in any case be proven by the customer. In particular, the customer is obliged to carefully inspect the goods for any defects before any further processing, cutting or surface treatment and to refrain from using the goods if a defect becomes apparent. In the event of any damage or defects occurring after further use by the customer, it shall be presumed that these were caused by the further processing, unless the customer proves that a defect already existed at the time of delivery by us. The same shall apply in the event of resale by the customer.
8.5 No warranty claims shall exist in the event of quality reductions and damage due to incorrect handling and storage. The intended uses and requirements listed in our product descriptions and delivery programs must be strictly observed. Warranty claims shall be excluded in particular if garden furniture or other wooden products intended for outdoor use are stored and/or presented indoors without ensuring air humidity corresponding to outdoor use, unless the customer proves that the defect/damage is not due to defective storage. The customer is obligated to clearly and understandably point out such restrictions of use to its customers. The customer shall be solely responsible for any failures to do so. He has to compensate us for all possible damages which are based on an insufficient description of use towards his buyer and to keep us free from possible claims of third parties.
9. defect rights
9.1 If the goods were defective at the time of the passing of risk, we shall be entitled, at our discretion, to remedy the defect either by repair or by subsequent delivery. In particular, we shall be entitled to demand that the customer return the goods to us for the purpose of rectification. The necessary transport costs for the return of the goods shall be borne by us in the event of justified notices of defect.
9.2 In the event of subsequent performance, we shall bear the expenses necessary for subsequent performance. The supplementary performance shall be limited to the rectification of defects or the subsequent delivery of a defect-free item. Any installation and removal measures shall neither be assumed by us within the scope of subsequent performance nor shall their costs be reimbursed.
9.3 The customer may only withdraw from the contract or reduce the purchase price if no subsequent performance is attempted within a reasonable period set by us or if subsequent performance is impossible, refused, failed or unreasonable. The period for subsequent performance must be at least four weeks, provided that there are no justified interests of the customer to the contrary. In case of doubt, a failure of the supplementary performance can only be assumed after the third failed attempt of supplementary performance. The customer shall not be entitled to withdraw from the contract due to insignificant defects. For rights of withdrawal and claims for damages due to defects, the special provisions in Section 10 shall apply in addition to the statutory requirements. 10.
9.4 The customer may withhold payments only to an extent that is reasonable in relation to the defects that have occurred.
9.5 Claims for defects shall become time-barred – subject to the exceptions regulated in Clause 11.3 – one year after delivery. This shall not apply if the claims for defects are subject to a limitation period of one year in accordance with
§§ 438 para. 1 no. 2, 634a para. 1 no. 2 BGB a statutory limitation period of five years shall apply. In this case as well as in the cases regulated in clause 11, the statutory provisions shall apply.
9.6 If it turns out that there is no warranty case, the customer is obliged to compensate us for the damage caused by the examination and processing of the notice of defects. Expenditure of work shall be charged according to our usual hourly rates. Alternatively, we are entitled to charge a flat rate of € 200.00 for our damages per unjustified notice of defect. The customer is entitled to prove that no damage or considerably less damage has been incurred.
9.7. 9.7 The provisions of §§ 478 para. 1 – 3, 479 BGB shall not apply, insofar as their scope of application is opened at all. The discount granted to the customer includes a discount as a lump sum compensation for the handling of warranty claims of consumers.
10. rights of withdrawal and claims for damages of the customer
10.1. 10.1 The statutory provisions shall apply to the right to rescind the contract with the proviso that the customer may only rescind the contract due to a breach of duty not consisting of a defect if we are responsible for the breach of duty.
10.2. 10.2 We shall only be liable for damage caused by delay in accordance with Section 4.8. We shall only be liable for other damage, insofar as the other requirements for claims are met, if we are guilty of intent or gross negligence. We shall be liable for simple negligence in the event of a breach of an obligation, the fulfillment of which is a prerequisite for the proper execution of the contract and on the observance of which the contractual partner may regularly rely (so-called cardinal obligation). Otherwise, liability for damages of any kind, regardless of the basis of the claim, including liability for culpa in contrahendo, is excluded.
10.3. 10.3 If we are liable for negligent conduct, our liability shall be limited to the damage that we could typically expect to occur under the circumstances known at the time of conclusion of the contract.
10.4. 10.4 The above exclusions and limitations of liability shall not apply insofar as we have assumed a guarantee, for damages which are to be compensated according to the Product Liability Act, as well as for damages to life, body or health.
10.5. 10.5 The above exclusions and limitations of liability shall also apply in favor of our employees, vicarious agents and other third parties whom we use to fulfill the contract.
10.6. 10.6 We shall not be responsible for defects in goods supplied to us unless the defect is obvious.
11. statute of limitations
11.1. 11.1 With regard to the limitation period for claims due to defects, reference is made to Section 9.5.
11.2. 11.2 Other contractual claims of the customer for breach of duty shall become statute-barred after one year. This shall not apply to the customer’s right to withdraw from the contract due to a breach of duty for which we are responsible and which is not due to a defect.
11.3. 11.3 Notwithstanding the foregoing, the statutory limitation periods shall apply to claims for damages arising from product liability, for damages arising from injury to life, limb, health or a material contractual obligation, and for other damages based on a wilful or grossly negligent breach of duty by us or our vicarious agents, as well as claims based on fraudulent concealment of a defect.
11.4. 11.4 Our claims against the customer shall become time-barred in accordance with the statutory provisions.
12. final provisions
12.1. 12.1 The law of the Federal Republic of Germany shall apply to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
12.2. 12.2 Place of performance is Bremen. The place of jurisdiction shall be Bremen. This place of jurisdiction shall apply exclusively to actions brought against us. We are optionally entitled to sue at the customer’s general place of jurisdiction.
12.3. 12.3 Should individual provisions of the contract, including these General Terms and Conditions, be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions. In this case, the wholly or partially invalid provision shall be replaced by a provision whose economic success comes as close as possible to that of the invalid provision.