GENERAL TERMS AND CONDITIONS
1.1 Unless otherwise expressly agreed, the following "General Terms and Conditions of Delivery and Payment" (GTCP) shall apply - in addition to the "Customs in Domestic Trade with Round Timber, Sawn Timber, Wood Materials and Other Wood Semi-finished Products" (Tegernseer Gebräuche) - to all contracts, deliveries and other services between Seller (Hiram Floors a registered trademark of Hiram GmbH von Saucken, Raiffeisenstraße 5, 77704 Oberkirch) and Buyer.
1.2 Deviating terms and conditions, in particular the Buyer's terms and conditions of purchase, are hereby rejected.
1.3 In the context of an ongoing business relationship between merchants, the ALZ shall also become an integral part of the contract if the Seller has not expressly referred to their inclusion in the individual case.
- OFFERS AND CONCLUSION OF CONTRACT
2.1 The offers contained in the catalogs and sales documents of the Seller, as well as - unless expressly designated as binding - on the Internet are always subject to change, i.e. only as an invitation to submit an offer.
2.2 Statements made before or during the conclusion of the contract regarding the characteristics of the products, information on dimensions, dimensions or weight of the product are indicative and binding for the Seller only if the above information is reflected in the order confirmation and has been countersigned by the Buyer.
2.3 Orders shall be deemed accepted if they are either confirmed in writing by the Seller or executed immediately after receipt of the order. If no order confirmation goes out, the invoice shall be deemed to be the order confirmation.
2.4 If, after conclusion of the contract, the Seller becomes aware of facts, in particular default of payment with regard to earlier deliveries, which, according to due commercial discretion, lead to the conclusion 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 Buyer's option, payment concurrently or corresponding securities and, in the event of refusal, to withdraw from the contract, in which case the invoices for partial deliveries already made shall become due immediately.
- DATA STORAGE
3.1 The Buyer is hereby informed that the Seller processes the personal data obtained in the course of the business relationship in accordance with the provisions of the Federal Data Protection Act.
- DELIVERY, TRANSFER OF RISK AND DELAY
4.1 If the sale of the goods is a sale of consumer goods in which the Seller is a business and the Buyer is a consumer, the Seller shall bear the risk of transport until the actual handover of the purchased goods to the Buyer in accordance with § 474 of the German Civil Code (BGB) and simultaneously with § 447 of the German Civil Code (BGB). If the Seller and the Buyer are equal contracting parties, i.e. if the goods are sold by one company to another company, the risk shall already pass to the Buyer upon handover of the purchased item to the carrier in accordance with § 447 BGB.
4.2 The delivery period shall be calculated from the written order confirmation onwards, provided that all relevant technical details and formalities are in place at the time of execution. Should this not be the case, the delivery period shall be calculated from the time when all preconditions are in place.
4.3 The delivery period shall be reasonably extended - also within a delay - in the event of force majeure and all unforeseen obstacles occurring after conclusion of the contract for which the Seller is not responsible (in particular also operational disruptions, strike, lockout or disruption of traffic routes), insofar as such obstacles demonstrably have a considerable influence on the delivery of the sold item. This shall also apply if these circumstances occur at the Seller's suppliers and their sub-suppliers.
4.4 The following circumstances shall be considered as force majeure and shall exempt the Seller from liability if they result in the prevention of the contract or make its performance unreasonable: Fire, mobilization or military conscription orders not anticipated, requisition, foreign exchange restrictions, riot and civil commotion, shortage of transportation, general shortage of goods, fuel restrictions, and shortage or delay of deliveries from suppliers resulting from any of the circumstances set forth in this section. The above circumstances shall only be exempt from liability if they were not foreseeable prior to the submission of the offer or the agreement entered into. The Seller is obliged to notify the Buyer of the above circumstances in writing without delay.
4.5 With regard to timely delivery, the Seller shall only be liable for its own fault and that of its vicarious agents. He shall not be liable for the fault of his sub-suppliers, as they are not his vicarious agents.
4.6 In the event of a delay in delivery, the Buyer shall be obliged, at the Seller's request, to declare within a reasonable period of time whether it still insists on delivery or withdraws from the contract due to the delay and/or claims damages instead of performance.
5.1 As indicated in the order confirmation and invoice, 50% of the purchase price of the ordered goods must be paid in advance.
5.2 Following the order confirmation, the Buyer shall receive a separate invoice, payment of which must be made within 8 days of receipt of the invoice. After receiving the advance payment, the production of the respective order shall start.
5.3 Delay of advance payment is considered as unjustified cancellation of the order. The Seller may therefore claim damages in accordance with the statutory provisions.
5.4 In case of default of the advance payment and the subsequent payment, interest shall be charged in the amount of the respective bank rates for overdrafts, but at least the statutory default interest. Should the Buyer be able to fulfill the payment in case of goods not yet delivered, the Seller shall be entitled to a lump sum of 25% of the purchase price as damages in accordance with statutory provisions and without any special proof. In case of proof of a higher damage, the Seller shall be entitled to demand compensation for further damages.
5.5 In case of further orders of the Buyer according to the order confirmation, another advance payment will be made on the added value of the order.
5.6 If the Buyer is not able to fulfill the payment of the object of purchase according to the agreed terms, the Seller is not obliged to deliver the goods. If the object of purchase has already been delivered to the Buyer, the Seller is entitled to collect the goods from the Buyer and resell them.
- NOTICE OF DEFECTS, WARRANTY AND LIABILITY
6.1 Wood is a natural product; its natural properties, deviations and characteristics must therefore always be observed. In particular, the Buyer shall take into account its biological, physical and chemical properties when purchasing and using it.
6.2 Samples of goods are only indicative and may differ from the ordered goods in quality, color and size.
6.3 Any drawings or technical documents provided by the Seller, shall not be used for any purpose other than quotation, commissioning, manufacture and installation.
6.4 The range of natural color, structure and other differences within a type of wood is part of the properties of the natural product wood and does not constitute any reason for complaint or liability.
If necessary, the Buyer shall seek professional advice.
6.5 The Seller shall only be liable for defects within the meaning of § 434 BGB as follows: The Buyer shall immediately inspect the received goods for quantity and quality. Obvious defects shall be notified to the Seller in writing within 14 days.
In the case of mutual commercial transactions between merchants, § 377 of the German Commercial Code (HGB) shall remain unaffected.
For the rest, reference is made to the Tegernsee customs.
6.6 If the Buyer discovers defects in the goods, he may not dispose of them, i.e. they may not be divided, resold or further processed, until an agreement has been reached on the settlement of the complaint or a procedure for the preservation of evidence has been carried out by an expert appointed by the Chamber of Industry and Commerce at the Buyer's place of business.
6.7 In case of justified complaints, the Seller shall be entitled to determine the type of subsequent performance ( replacement delivery, rectification, refund or reduction of the purchase price ), taking into account the type of defect and the justified interests of the Buyer.
6.8 The Buyer shall inform the Seller as soon as possible about a warranty case occurring with a consumer.
6.9 For third-party products, the Seller's liability shall be limited to the assignment of the warranty claims to which the Seller is entitled against the supplier of the third-party product.
6.9.1 We expressly point out that we only sell you the above-mentioned goods, for the good quality of which we are naturally responsible. The necessary craftsman's work will be performed between you and the craftsman recommended to you by us in a separate order. Here we have taken your order as representative of the craftsman in the name and on account of the craftsman. Please clarify all questions regarding the execution, complaints about the execution and invoicing directly with the craftsman.
- GENERAL LIMITATION OF LIABILITY
7.1 Claims for damages and reimbursement of expenses of the Buyer (hereinafter: claims for damages), irrespective of their legal basis, in particular due to breach of duties arising from a contractual obligation and from tort, shall be excluded.
This shall not apply in cases of the assumption of a guarantee or a procurement risk.
7.2 The Seller shall not assume any liability for the work of a craftsman, even if the Seller has recommended him. The execution of the craftsman's work requires a separate commissioning of the craftsman's company by the Buyer.
7.3 Seller shall be liable for personal injury caused by a product manufactured by Seller only if it can be shown that the injury resulted from errors or omissions for which Seller or someone else for whom Seller is liable is responsible. Seller shall not be liable for damage to buildings and furniture or the like if the goods are already in Buyer's possession.
7.4 Furthermore, this shall not apply if liability is mandatory, e.g. under the Product Liability Act, in cases of intent and gross negligence, due to injury to life, limb or health, or due to breach of material contractual obligations. Material contractual obligations are obligations that protect the customer's material contractual legal positions, which the contract is intended to grant the customer according to its content and purpose; material contractual obligations are also obligations whose fulfillment makes the proper execution of the contract possible in the first place and on whose fulfillment the customer regularly relies and may rely. However, the claim for damages for the breach of essential contractual obligations shall be limited to the foreseeable damage typical for the contract, unless there is intent or gross negligence or liability exists due to injury to life, body or health. This does not imply a change in the burden of proof to the detriment of the purchaser.
- DELIVERY AND ACCEPTANCE OF GOODS
8.1 A delay in delivery of 21 days due to certain circumstances, shall nevertheless be considered timely. Therefore, the Buyer may not make any claim against the Seller, cancel the order or refuse to accept the goods upon delivery.
8.2 In case of delivery changes on the part of the Buyer, the Buyer must notify the Seller immediately. After two suspensions of delivery, the Buyer will be charged for any storage costs incurred as mentioned in the order confirmation.
8.3 The Buyer shall perform quantity and quality control upon acceptance of the goods. Upon receipt of the delivery bill from the carrier, the complete and undamaged delivery shall be considered as documentation.
8.4 The goods must be inspected immediately upon receipt. Please note any visible defects with the carrier on the delivery bill. Obvious defects of the goods must be received by Hiram Floors in writing within 7 days after delivery. After this period we do not assume any liability. The Buyer is obliged to keep the damaged goods for two weeks, unless the Seller informs the Buyer otherwise.
8.5 The Buyer is responsible for the unloading and the costs of the same. There should be sufficient space, at least 2 persons and, depending on the volume, a forklift and/or crane available on site, which the Buyer shall provide without charge. In case of crane unloading, the Buyer shall inform the Seller in advance, as an open top truck must be ordered for the delivery. Buyer shall ensure that longer planks can be transported to the designated spaces and that sufficient space is available. Longer idle times of the truck will be charged to the Buyer. Delivery of Hiram Floors planks will be made by an 18.5 m long truck (40 t).
- RETENTION OF TITLE
9.1 The Seller shall retain title to the goods until the purchase price has been paid in full. In the case of goods purchased from the Buyer in the course of an ongoing business relationship, the Seller shall retain title until all its claims against the Buyer arising from the business relationship, including claims arising in the future, including claims arising from contracts concluded at the same time or later, have been settled. This shall also apply if individual or all claims of the Seller have been included in a current account and the balance has been struck and accepted.
9.2 If the goods subject to retention of title are processed by the Buyer to form a new movable item, the processing shall be carried out on behalf of the Seller without the Seller being obliged as a result; the new item shall become the property of the Seller. In the event of processing together with goods not belonging to the Seller, the Seller shall acquire co-ownership of the new item in proportion to the value of the reserved goods to the other goods at the time of processing. If the reserved goods are combined, mixed or blended with goods not belonging to the Seller in accordance with §§ 947, 948 BGB, the Seller shall become co-owner in accordance with the statutory provisions. If the Buyer acquires sole ownership as a result of combining, mixing or blending, he hereby assigns co-ownership to the Seller in proportion to the value of the reserved goods to the other goods at the time of combining, mixing or blending. In such cases, the Buyer shall hold in custody, free of charge, the item owned or co-owned by the Seller, which shall also be deemed to be reserved goods within the meaning of the above conditions.
9.3 If goods subject to retention of title 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 goods subject to retention of title with all ancillary rights and priority over the rest; the Seller accepts the assignment. The value of the goods subject to retention of title shall be the invoice amount of the Seller, which shall, however, remain out of account insofar as third party rights oppose it.
If the resold goods subject to retention of title are co-owned by the Seller, the assignment of the claims shall extend to the amount corresponding to the share value of the Seller in the co-ownership.
9.4 If goods subject to retention of title are installed by the Buyer as an essential component in a property, ship, ship under construction or aircraft of a third party, the Buyer hereby assigns the assignable claims for remuneration arising against the third party or the party to whom it relates in the amount of the value of the goods subject to retention of title with all ancillary rights, including a right to the granting of a lien in rem, with priority over the remainder; the Seller accepts the assignment. Paragraph 9.3, sentences 2 and 3 shall apply accordingly.
9.5 If goods subject to retention of title are installed by the Buyer as an essential component in a property, ship, ship under construction or aircraft of the Buyer, the Buyer hereby assigns the claims arising from a sale of the property, rights to property, ship, ship under construction or aircraft in the amount of the value of the goods subject to retention of title with all ancillary rights and with priority over the rest; the Seller accepts the assignment. Paragraph 9.3 sentences 2 and 3 shall apply accordingly.
9.6 The Buyer shall be entitled and authorized to resell, use or install the Retained Goods only in the ordinary course of business and only subject to the proviso that the claims within the meaning of paras. 3 to 5 shall actually pass to the Seller. The Buyer shall not be entitled to dispose of the Retained Goods in any other way, in particular by pledging them or assigning them as security.
9.7 The Seller authorizes the Buyer, subject to revocation, to collect the claims assigned pursuant to paras. 3-5. The Seller shall not make use of its own collection authority as long as the Buyer meets its payment obligations, also towards third parties. At the Seller's request, the Buyer shall name the debtors of the assigned claims and notify them of the assignment; the Seller shall be authorized to notify the debtors of the assignment itself.
9.8 The Buyer shall notify the Seller without delay of any compulsory enforcement measures by third parties against the reserved goods or the assigned claims, handing over the documents necessary for the objection.
9.9 The right to resell, use or install the reserved goods or the authorization to collect the assigned claims shall expire upon cessation of payments and/or filing for insolvency proceedings. This shall not apply to the rights of the insolvency administrator.
9.10 If the value of the securities granted exceeds the claims (reduced by down payments and partial payments, if applicable) by more than 20 %, the Seller shall be obliged to retransfer or release the securities at its discretion.
Upon settlement of all claims of the Seller arising from the business relationship, ownership of the reserved goods and the assigned claims shall pass to the Buyer.
- PLACE OF JURISDICTION AND APPLICABLE LAW
10.1 The place of performance and jurisdiction for deliveries and payments as well as for all disputes arising between the parties shall be the Seller's principal place of business, provided that the Buyer is a merchant, a legal entity under public law or a special fund under public law. However, the Seller shall also be entitled to sue the Buyer at the Buyer's place of business.
10.2 The relations between the contracting parties shall be governed exclusively by the law applicable in the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods.