GENERAL TERMS HOBATEX GmbH Holzwerkstoffe
A. Validity of the trading terms of the HOBATEX GmbH Holzwerkstoffe/ TEGERNSEER GEBRÄUCHE
These trading terms shall apply always and exclusively for the contractual relationship between our business partners and us, even if there is no further reference during individual deals. The general terms of our business partners, whether they are customers or suppliers, do not apply to procured deals. For contract closure, these general terms apply with regard to the Trading Practices of the Association of German Wood Importing Businesses (German: “Vereins deutscher Holz-Einfuhrhäuser”) and the “TEGERNSEER PRACTICES” (German: “TEGERNSEER GEBRÄUCHE”), each applies respectively in its newest version for trading with round, sawn and raw wood goods in conjunction with the Practices for Procuring Wood Transactions (German: “Gebräuchen für die Vermittlung von Holzgeschäften”).
If individual regulations of contracts concluded with HOBATEX GmbH Holzwerkstoffe should be or become invalid, these contracts shall be affected no further. Any resulting contractual gaps are concluded by supplementary agreement that will based the contractual interpretation of aim and purpose of the invalid regulation.
B. Terms of purchase and ordering
Only the legislative regulations are relevant for orders placed by us. If not agreed differently, the listed prices are considered to be fixed prices. The price covers all services required to fulfil the contract. The agreed prices particularly covers packaging, transport, insurance, expenses, license fees and all other public dues excluding VAT. Upon order placement without price or with price indication, HOBATEX GmbH Holzwerkstoffe reserves the right to approve the price after receiving confirmation. Before completion of the give over to HOBATEX GmbH Holzwerkstoffe or before deliveries and services buyoff by HOBATEX GmbH Holzwerkstoffe, the supplier bears the risk of loss, accidental loss or damage independent from pricing.
C. General service terms
HOBATEX GmbH Holzwerkstoffe exclusively concludes contracts with companies in terms of § 14 BGB as well as legal persons of public law and public law separate estate.
C.1. Order confirmation / Scope of services
In the absence of a contract signed by both sides, our written order confirmation is relevant for the content of the respective contract.
Verbal agreements with employees not authorized for representation in the sense of contract closures also require our written confirmation in order become effective.
Upon contract closure by signature of both sides, all previous offers, negotiation protocols, statements, collateral agreements and preliminary contracts loose their effectiveness, unless the contract refers back to them.
Clause C.1.03 shall apply accordingly, if a contract is confirmed by HOBATEX GmbH Holzwerkstoffe order confirmation.
The customer has to provide HOBATEX GmbH Holzwerkstoffe with all information and documents that are necessary or useful for performing the order.
Statements on services, features, schedules and such listed in the internet, in catalogues, brochures, newsletters, ads, pictures and price lists shall only be roughly decisive. These statements and performance types are decisive only if they are explicitly confirmed by the order confirmation, if necessary in conjunction with the service specifications.
Apart from that, dimensional variations as described in the DIN regulations remain reserved. Especially regarding fixed dimensions (cut-outs), the dimensional tolerance is ± 2.5 mm per running meter.
HOBATEX GmbH Holzwerkstoffe reserves the right to execute orders even without previous order confirmations.
HOBATEX GmbH Holzwerkstoffe owes consulting services only due to a separate contract and against separate payment.
C.3. Place of performance / Risk of loss
Place of performance for services provided by the HOBATEX GmbH Holzwerkstoffe and for services provided by the customer are the HOBATEX GmbH Holzwerkstoffe business premises.
C.4 Deadlines / Vicarious agents
Possibly agreed delivery deadlines are valid ex works, unless something else has explicitly been agreed on. Such delivery periods begin with the time listed in the order, but at the earliest when the documents, approvals, requests and shipment addresses have been provided by the customer, all order details have been clarified and the customer has provided the agreed deposits or securities. If a delivery period has been agreed, it will be extended appropriately if the customer is in arrears on delivering the documents, approvals, shipment addresses, deposits or securities that need to be provided by him. If a delivery date has been agreed, it will be postponed appropriately if the customer is in arrears on delivering the documents, approvals, shipment addresses, deposits or securities that need to be provided by him. A corresponding postponement or extension of delivery periods also occurs if the prerequisites that need to be ensured by the customer himself or by third parties that are necessary for the fulfilment of HOBATEX GmbH Holzwerkstoffe services are not fulfilled in time.
If the customer demands an alteration in the order, the period for delivery begins to run after HOBATEX GmbH Holzwerkstoffe has confirmed the alteration. The delivery date is postponed accordingly.
The delivery periods shall be appropriately extended or postponed in the case of measures within the scope of industrial disputes, in particular strike and lock-out as well as in the case of the occurrence of unforeseen obstacles which occur despite reasonable diligence applied by HOBATEX GmbH Holzwerkstoffe according to the circumstances of the case, e.g. delays in the delivery of essential parts by our sub-suppliers, for whose delays HOBATEX GmbH Holzwerkstoffe cannot be held liable.
If the service provision by HOBATEX GmbH Holzwerkstoffe is delayed because of circumstances attributable to the customer, the customer will bear possible disadvantages arising from the delay. This also applies to other cases, in which HOBATEX GmbH Holzwerkstoffe is not responsible for delays in shipment or processing.
In the event of non-delivery by HOBATEX GmbH Holzwerkstoffe suppliers or of non-performance or of flawed performance by vicarious agents of HOBATEX GmbH Holzwerkstoffe for which HOBATEX GmbH Holzwerkstoffe is not liable, the contract may be cancelled by HOBATEX GmbH Holzwerkstoffe. In these cases, customer claims for damage compensation are excluded.
The same shall apply to fixed deals, if the previous delays do not cease in time.
Any compensation for damages caused by delay are limited to the negative interest.
HOBATEX GmbH Holzwerkstoffe is entitled to perform partial deliveries.
If HOBATEX GmbH Holzwerkstoffe makes use of this right, payments for already delivered goods cannot be held back for this reason.
C.5. Payment terms / INCOTERMS
The prices do not include the respective applicable legal VAT, the same applies to costs and interest.
Discount deduction shall only be deemed acceptable if expressly agreed to in writing.
Unless otherwise agreed upon, the payment must be made immediately.
HOBATEX GmbH Holzwerkstoffe is authorized to determine a payment date together with or independent from the invoice that is either according to the calendar or can be calculated with a calendar.
The customer will come in arrears with his payment, if he does not pay after receiving a reminder by HOBATEX GmbH Holzwerkstoffe, which will be sent after the payment due date has passed. Independent from that, he will be in arrears if he does not pay by the date defined in the calendar or by the date that can be calculated using a calendar.
In the event of delayed payments, the customer owes 10% yearly interest above the respective base rate.
HOBATEX GmbH Holzwerkstoffe is also authorized to claim compensation for damage caused by delays that exceeds clause C.5.06.
Place of performance for payments made to HOBATEX GmbH Holzwerkstoffe is the registered office of HOBATEX GmbH Holzwerkstoffe.
The customer can only reckon with undisputed or legally ascertained claims.
The customer is not entitled to the right of retention. But the rights according to § 320 BGB remain valid until HOBATEX GmbH Holzwerkstoffe has not met it’s obligations concerning warranty.
Insofar as HOBATEX GmbH Holzwerkstoffe accepts cheques, they are accepted in lieu of cash payment only. Payments with bills of exchange are not admissible.
If a customer cheque cannot be cashed or is demanded back, HOBATEX GmbH Holzwerkstoffe may demand the immediate payment of otherwise uncontested delivery receivables, even of those that are not yet due. The same applies if a customer enters default of payment with an instalment. If the customer does not meet this demand, HOBATEX GmbH Holzwerkstoffe may cancel the named contracts and claim damage compensation for non-performance after setting a deadline. The compensation amount will be 25% of the non-performed order sum without any special proof. If the corresponding proof is available, HOBATEX GmbH Holzwerkstoffe is entitled to claim compensation for damages caused by non-performance exceeding the above amount.
Prices payable by HOBATEX GmbH Holzwerkstoffe are CIF according to INCOTERMS 2000 unless agreed otherwise.
If the cost factors change after order confirmation, especially prices for raw and auxiliary materials, wages and transport costs, we may perform a corresponding change to the prices, if the time period between order confirmation and delivery is longer than 4 months.
Regulation of the VAT laws apply to deposits.
Unnamed payments from the customer will be booked to the oldest respective claim of HOBATEX GmbH Holzwerkstoffe.
Payments intended for certain claims are always booked to the respective oldest claim by HOBATEX GmbH Holzwerkstoffe.
C.6. Inspection and reporting obligations
The deliveries of HOBATEX GmbH Industrial Partners are to be checked by the customer immediately upon handover (within maximum 6 working days) for correctness and freedom from defects.
a) Defects must be reported by the customer within 6 working days from the arrival of the goods to HOBATEX GmbH Industrial Partners. It must be reported in writing – also by fax / e-mail – under exact description of the nature and extent of the defects.
b) At the request of HOBATEX GmbH Industrial Partners, the customer must forward either defects-proving photographs or a defect item within 12 working days.
If the customer fails to meet the obligations in C.6.02 on time or in completeness, all warranty rights to which he is entitled are invalid.
The following warranty limitation does not apply to damages from injury to life, body or health that are based on an intentional or gross negligent breach of an obligation by us or one of our legal representatives or vicarious agents. It also does not apply if any other damage is based on intention or gross negligence.
Warranty is provided only for first class goods, not for second or third class goods.
The warranty period is 12 months. Any insignificant breaches of obligations and insignificant flaws are excluded from any liability and warranty. In the event that the customer is entitled to the right of supplementary performance, HOBATEX GmbH Holzwerkstoffe decides if the supplementary performance is provided by rectifying the flaw or by delivering a flaw-free good.
Activities on goods delivered by HOBATEX GmbH Holzwerkstoffe or other performances provided by HOBATEX GmbH Holzwerkstoffe are only considered as flaw rectification or rework activities,
- if the faultiness was expressively recognized by HOBATEX GmbH Holzwerkstoffe
- or if complaints can be proven
- and if these proven complaints are justified.
Without these prerequisites, such activities are considered as special services.
In general, all rework activities or replacements are provided as special performances by HOBATEX GmbH Holzwerkstoffe if they are not explicitly performed in recognition of a legal obligation.
If the warranty period is inhibited or interrupted by activities or replacement deliveries performed HOBATEX GmbH Holzwerkstoffe, this inhibition or interruption extends only to the functional unit affected by the replacement delivery or rework activity.
The purchaser has to provide HOBATEX GmbH Holzwerkstoffe with the necessesary time and opportunity to perform reworks and replacement deliveries owed due to warranty obligations. Only in urgent cases of an endangered operational reliability or for fending off disproportionate damages, which require that HOBATEX GmbH Holzwerkstoffe is notified immediately, or if HOBATEX GmbH Holzwerkstoffe is in arrears concerning flaw rectification, is the purchaser entitled to rectify the flaw himself or to have it rectified by third parties and to claim the necessary costs from HOBATEX GmbH Holzwerkstoffe.
The customer is entitled to withdraw from the contract when the required supplementary performance by our choice has not resulted in the rectification of the flaw within an acceptable number of attempts. The acceptable number of attempts has to be assessed on a case-by-case basis. At least three supplementary performance attempts are acceptable. The number of the supplementary performance attempts, after which the customer is entitled to withdraw, must refer to a certain functional unit of a contractual object. The customer is entitled to withdraw if the individual flaws make it unacceptable for the customer to adhere to the contract, regardless of whether the same functional unit of the contractual object keeps being affected.
If HOBATEX GmbH Holzwerkstoffe has declined a supplementary performance in spite of the customer’s entitlement to supplementary performance, the customer is entitled to withdraw immediately.
The same applies if HOBATEX GmbH Holzwerkstoffe has not performed a supplementary performance to which the HOBATEX GmbH Holzwerkstoffe is entitled to within an adequate respite set by the customer.
The customer may claim the right to reduce the price (reduction) only if HOBATEX GmbH Holzwerkstoffe agrees.
All further customer claims are excluded insofar as permitted by law.
No warranty will be given for damages that HOBATEX GmbH Holzwerkstoffe is not responsible for. For instance, this includes damages that were caused by the following reasons: Inadequate or improper use or storage, natural wear, flawed or negligent treatment, chemical, electro-chemical or thermal influences, insofar HOBATEX GmbH Holzwerkstoffe was not at fault.
C.8. Exterritorial shipment
In the event that goods delivered by HOBATEX GmbH Holzwerkstoffe are shipped outside of Germany in spite of the fact that the respective contract was enclosed with a customer branch or with customer headquarters located in Germany, the customer will be responsible for the additional transport costs, travel expenses or other costs that may arise if HOBATEX GmbH Holzwerkstoffe will have to perform warranty activities outside of Germany’s borders.
C.9. Damage compensation
The following exemption from liability does not apply to damages from injury to life, body or health and nor does it apply if the damage cause is based on intention or gross negligence or if a so called essential contract duty was violated. It also does not apply if the purchaser is entitled to demand damage compensation for non-performance due to a warranty. Finally, the liability limitations do not apply to claims according to §§ 1 and 4 Product Liability Act (German: “Produkthaftungsgesetz”).
The customer may claim compensation for damage due to non-performance or withdraw from the contract only, if we have neither provided an alternative delivery nor supplementary performance or if the an alternative delivery or supplementary performance is not acceptable for the customer. Insofar as nothing else is revealed in the following, further customer claims – no matter what their legal basis may be – are excluded. This is why we are not liable for damages on objects different from the delivered object. In particular, we are not liable for loss of earning or other financial losses of the customer. If we are liable, then our liability is limited to the predictable typical damage. A change in the burden of proof in disadvantage of the customer is not associated with the regulations of this paragraph.
Clause C.09.01 also applies for culpability for contract initiation and illicit action.
C.10 Place of performance and place of fulfilment
Place of performance and place of fulfilment for services to be provided by HOBATEX GmbH Holzwerkstoffe always are the HOBATEX GmbH Holzwerkstoffe company grounds.
C.11. Reservation of proprietary rights
All deliveries are performed under reservation of proprietary rights.
This reservation together with the following extension applies until payment of all claims originating from the business relationship with the customer and until complete exemption of contingent liabilities that HOBATEX GmbH Holzwerkstoffe may have entered in the customer’s interest.
Pledging the delivered goods is not admissible.
HOBATEX GmbH Holzwerkstoffe is entitled to demand its goods that are subject to reservation for important reasons, especially for payment delays against charge of the liquidation proceeds. This reclaiming does not constitute a withdrawal from the contract.
If an insofar as the withdrawn goods can be sold as new in a regular business process by HOBATEX GmbH Holzwerkstoffe, the customer owes 10% of the goods invoice value as withdrawal costs without any detailed proof. If a sale as new in a regular business process is impossible, the customer owes an additional 30% of the goods invoice value for loss of value. In the respective cases, the customer is reserved the right to provide proof of a lesser percentage.
HOBATEX GmbH Holzwerkstoffe reserves the right to claim further damage compensation.
Processing of the goods delivered by HOBATEX GmbH Holzwerkstoffe is always performed on order by HOBATEX GmbH Holzwerkstoffe, so that the goods under exclusion of the consequences § 950 BGB remain in the ownership of HOBATEX GmbH Holzwerkstoffe in every processing condition or even as finished goods. If the goods that are subject to retention are processed with other goods under exclusion of the legal consequences of § 950 BGB, HOBATEX GmbH Holzwerkstoffe achieves at least a joint ownership of the new good in the proportion of the invoice value of the goods of HOBATEX GmbH Holzwerkstoffe compared with the invoice value of the other processed goods.
The customer assigns all claims from reselling, processing, installation and other utilization of our goods to HOBATEX GmbH Holzwerkstoffe in advance. Insofar as the objects sold, processed or installed by the purchaser contain objects that are not owned by the purchaser and are subject to the reservation of proprietary rights with selling clause and assignment in advance by other suppliers, the assignment is performed in regards to the joint ownership proportion of HOBATEX GmbH Holzwerkstoffe that corresponds with the claim proportion, otherwise to the full extent.
The withdrawal entitlement of the purchaser that remains in spite of the assignment expires upon revocation that is admissible at any time.
If the value of the securities that are attributable to the HOBATEX GmbH Holzwerkstoffe exceeds the claims of HOBATEX GmbH Holzwerkstoffe against the purchaser by more than 10%, HOBATEX GmbH Holzwerkstoffe is obligated to provide securities of choice by HOBATEX GmbH Holzwerkstoffe on the purchaser’s request.
C.12 Legal venue and substantive law
For all disputes arising from transactions that underlie these terms and conditions, with merchants, legal persons under public law and special funds under public law, the District Court of Brakel is agreed upon for amounts in dispute up to € 5,000 and the district court of Paderborn as the place of jurisdiction for disputes over € 5,000.
Likewise, the law of the Federal Republic of Germany is exclusively applicable. The application of UN purchasing law or other uniform law is excluded.
Headers in the general terms of HOBATEX GmbH Holzwerkstoffe merely serve easier legibility and have no influence on the meaning and interpretation of the individual regulations.
Texts transmitted by Fax, telex or e-mail are also considered as written declarations of intention or knowledge in the sense of the general terms of HOBATEX GmbH Holzwerkstoffe.
Delivery dates describe a date, whether it is a certain day or calendar week or the likes, at which the delivery has to be performed. Delivery periods name a period within which the delivery has to be performed. Delivery time is the generic term for delivery dates and delivery periods.