A. General Terms and Conditions of Delivery and Payment for the Timber Trade (ALZ) for exclusive use in commercial business transactions

Status: June 2023

1. APPLICATION

1.1 Unless expressly agreed otherwise, the following “General Terms and Conditions of Delivery and Payment” (GTCD) shall apply – in addition to the customs in the timber industry (Tegernsee customs) – to all contracts, deliveries and other services in business transactions with entrepreneurs within the meaning of Section 14 of the German Civil Code (BGB), legal entities under public law or special funds under public law (collectively referred to as “Buyer”).

1.2 Our General Terms and Conditions apply exclusively. Deviating, conflicting or supplementary General Terms and Conditions of the Buyer shall only become part of the contract if and to the extent that we have expressly agreed to their validity. This requirement of consent shall apply in any case, for example even if we provide the service to the Buyer without reservation in the knowledge of the Buyer’s General Terms and Conditions.

1.3 Our GT&Cs apply in particular to contracts for the sale and/or delivery of movable goods (“Goods”), irrespective of whether we manufacture the Goods ourselves or purchase them from suppliers (Sections 433, 650 BGB).

1.4 Unless otherwise agreed, the GTCS in the version valid at the time of the Buyer’s order or in any case in the version last communicated to him in text form shall also apply as a framework agreement for similar future contracts, without us having to refer to them again in each individual case.

1.5 Individual agreements made with the Buyer in individual cases (including collateral agreements, supplements and amendments) shall in any case take precedence over these GTD. Subject to proof to the contrary, a written contract or our written confirmation shall be decisive for the content of such agreements.

1.6 Legally relevant declarations and notifications to be made to us by the Buyer after conclusion of the contract (e.g. setting of deadlines, notification of defects, declaration of withdrawal or reduction) must be made in text form to be effective. Statutory formal requirements and further evidence, in particular in the event of doubts about the legitimacy of the declaring party, shall remain unaffected.

1.7 References to the validity of statutory provisions are for clarification purposes only. Even without such clarification, the statutory provisions shall therefore apply unless they are directly amended or expressly excluded in these ALZ.

2. 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 non-binding and subject to change, i.e. only to be understood as an invitation to submit an offer.

2.2 The order of the goods by the Buyer shall be deemed a binding offer of contract. Unless otherwise stated in the order, we are entitled to accept this contractual offer within two (2) weeks of its receipt by us. Orders shall be deemed accepted if they are either confirmed by us or executed immediately after receipt of the order.

2.3 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, indicate that the purchase price claim is jeopardized by the Buyer’s inability to pay, the Seller shall be entitled, after setting a reasonable deadline, to demand concurrent payment or corresponding securities from the Buyer at his discretion and, in the event of refusal, to withdraw from the contract, whereby the invoices for partial deliveries already made shall become due immediately.

3. DELIVERY, TRANSFER OF RISK AND DELAY

3.1 Delivery shall be ex warehouse, which is also the place of performance for the delivery and any subsequent performance. At the request and expense of the Buyer, the goods shall be shipped to another destination (sale to destination). Unless otherwise agreed, we are entitled to determine the type of shipment (in particular transport company, shipping route, packaging) ourselves. We reserve the right to correct and timely self-delivery.

3.2 The risk of accidental loss and accidental deterioration of the goods shall pass to the Buyer at the latest upon handover. In the case of sale by dispatch, however, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay shall already pass upon delivery of the goods to the forwarding agent, the carrier or the person or institution otherwise designated to carry out the shipment. If acceptance has been agreed, this shall be decisive for the transfer of risk. The statutory provisions of the law on contracts for work and services shall also apply accordingly to any agreed acceptance. If the Buyer is in default of acceptance, this shall be deemed equivalent to handover or acceptance.

3.3 Partial deliveries are permissible to a reasonable extent.

3.4 The delivery period shall be agreed individually or specified by us upon acceptance of the order. If this is not the case, the delivery period shall be approx. three (3) weeks from conclusion of the contract.

3.5 If we are unable to meet binding delivery deadlines for reasons for which we are not responsible (non-availability of the service), we shall inform the Buyer of this immediately and at the same time inform the Buyer of the expected new delivery deadline. If the service is also not available within the new delivery period, we shall be entitled to withdraw from the contract in whole or in part; we shall immediately reimburse any consideration already paid by the Buyer. A case of non-availability of the service in this sense is in particular the failure of our supplier to deliver to us in good time, if neither we nor our supplier are at fault or if we are not obliged to procure in the individual case.

3.6 In the event of a delay in delivery, the Buyer is obliged, at the Seller’s request, to declare within a reasonable period of time whether it still insists on delivery or whether it will withdraw from the contract due to the delay and/or demand compensation instead of performance.

3.7 The occurrence of our delay in delivery shall be determined in accordance with the statutory provisions. In any case, however, a reminder from the buyer is required. If we are in default of delivery, the Buyer may demand lump-sum compensation for the damage caused by the delay. The lump-sum compensation shall amount to 0.5% of the net price (delivery value) for each completed calendar week of delay, up to a maximum of 5% of the delivery value of the goods delivered late. We reserve the right to prove that the buyer has not suffered any damage at all or only significantly less damage than the above lump sum.

3.8 The Buyer’s rights in accordance with Section 7 of these GT&Cs and our statutory rights, in particular in the event of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or subsequent performance), shall remain unaffected.

4. PRICES AND TERMS OF PAYMENT

4.1 Unless otherwise agreed, our current prices at the time of conclusion of the contract shall apply ex warehouse (plus statutory VAT). The purchase price is due and payable within 14 days of invoicing and delivery or acceptance of the goods.

4.2 In the case of sales shipment (3.1), the Buyer shall bear the transportation costs ex warehouse and the costs of any transportation insurance requested by the Buyer. Any customs duties, fees, taxes and other public charges shall be borne by the Buyer.

4.3 If the buyer and seller participate in a company direct debit procedure, it shall be sufficient if the buyer receives the pre-notification of the direct debit amount and due date fees one day before the due date.

4.4 We are entitled at any time, even in the context of an ongoing business relationship, to make a delivery in whole or in part only against advance payment. We shall declare a corresponding reservation at the latest with the order confirmation.

4.5 Upon expiry of the above payment period (4.1), the Buyer shall be in default. During the period of default, interest shall be charged on the purchase price at the applicable statutory default interest rate. We reserve the right to claim further damages caused by default. Our claim to commercial maturity interest (§ 353 HGB) against merchants remains unaffected. Any agreed discounts shall not be granted if the buyer is in arrears with the payment of earlier deliveries. Discount periods shall commence from the invoice date.

4.6 If the Buyer is in default of payment due to a reminder (§ 286 para. 1 BGB), the Seller is entitled to take back or demand the return of the goods after prior reminder. The Seller may also prohibit the removal of the delivered goods. Taking back the goods shall be deemed a withdrawal from the contract.

4.7 A refusal or retention of payment is excluded if the Buyer was aware of the defect or other reason for complaint when the contract was concluded. This shall also apply if it remained unknown to him as a result of gross negligence, unless the seller fraudulently concealed the defect or other reason for complaint or assumed a guarantee for the quality of the item. Otherwise, payment may only be withheld to a reasonable extent due to defects or other complaints. In the event of a dispute, an expert appointed by the buyer’s Chamber of Industry and Commerce shall decide on the amount. This expert shall also decide on the distribution of the costs of his involvement at his reasonable discretion.

4.8 Offsetting or retention is only possible for the buyer with undisputed or legally established claims. In the event of defects in the delivery, the Buyer’s counter-rights shall remain unaffected.

4.9 If it becomes apparent after conclusion of the contract (e.g. through an application for the opening of insolvency proceedings) that our claim to the purchase price is jeopardized by the Buyer’s inability to pay, we shall be entitled to refuse performance in accordance with the statutory provisions and – if necessary after setting a deadline – to withdraw from the contract (Section 321 BGB). In the case of contracts for the manufacture of non-fungible goods (custom-made products), we may declare our withdrawal immediately; the statutory provisions on the dispensability of setting a deadline shall remain unaffected.

5. PROPERTIES OF THE WOOD

5.1 Wood is a natural product; its natural properties, deviations and characteristics must therefore always be observed. In particular, the buyer must take its biological, physical and chemical properties into account when purchasing and using it.

5.2 The range of natural differences in color, structure and other differences within a type of wood is part of the properties of the natural product wood and does not constitute grounds for complaint or liability.

5.3 If necessary, the buyer must obtain professional advice.

6. NOTICE OF DEFECTS, WARRANTY AND LIABILITY

6.1 The characteristics of the goods, in particular quality, grade and dimensions, shall be determined by the agreements between the parties. The product descriptions that are the subject of the individual contract shall be deemed to be an agreement on the quality of the goods. In all other respects, the statutory provisions shall be applied to determine whether or not a defect exists (§ 434 BGB). The seller is not bound by public statements made by the manufacturer or other third parties (e.g. advertising statements) if he was not aware of them and could not have been aware of them, if the statement had been corrected in the same or an equivalent manner at the time the contract was concluded or if the statement could not have influenced the purchase decision. Declarations of conformity and CE markings do not constitute independent guarantees. The risks of suitability and use lie with the buyer.

6.2 The Seller shall only be liable for defects within the meaning of § 434 BGB as follows: The Buyer shall immediately inspect the goods received for quantity and quality. Obvious and hidden defects must be reported to the seller in writing within 14 days of discovery. In the case of mutual commercial transactions between merchants, §§ 377, 381 HGB remain unaffected. For the rest, reference is made to the Tegernsee customs.

6.3 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 handling of the complaint or until evidence has been secured by an expert appointed by the Chamber of Industry and Commerce at the buyer’s registered office.

6.4 In the event of justified complaints, the Seller shall be entitled to determine the type of subsequent performance (replacement delivery, rectification), taking into account the nature of the defect and the legitimate interests of the Buyer. We are entitled to make the subsequent performance owed dependent on the Buyer paying the purchase price due. However, the buyer is entitled to retain a reasonable part of the purchase price in relation to the defect.

6.5 The Buyer shall inform the Seller as soon as possible of any warranty claim made by a consumer.

6.6 The Buyer shall give us the time and opportunity required for the subsequent performance owed, in particular to hand over the defective goods for inspection purposes. In the event of a replacement delivery, the Buyer shall return the defective item to us in accordance with the statutory provisions. Subsequent performance does not include the removal of the defective item or its reinstallation if we were not originally obliged to install it.

6.7 We shall bear or reimburse the expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labor and material costs and, if applicable, removal and installation costs, in accordance with the statutory provisions, if a defect actually exists. Otherwise, we may demand reimbursement from the Buyer for the costs incurred as a result of the unjustified request to remedy the defect (in particular inspection and transport costs), unless the lack of defectiveness was not recognizable to the Buyer.

6.8 If the supplementary performance has failed or a reasonable deadline to be set by the Buyer for the supplementary performance has expired without success or is dispensable according to the statutory provisions, the Buyer may withdraw from the purchase contract or reduce the purchase price. In the case of an insignificant defect, however, there is no right of withdrawal.

6.9 Claims of the Buyer for damages or reimbursement of futile expenses shall only exist in accordance with Section 7, even in the case of defects, and are otherwise excluded.

7. GENERAL LIMITATION OF LIABILITY

7.1 Unless otherwise stated in these GT&Cs, including the following provisions, we shall be liable in the event of a breach of contractual and non-contractual obligations in accordance with the statutory provisions.

7.2 We shall be liable for damages – irrespective of the legal grounds – within the scope of fault-based liability in the event of intent and gross negligence. In the event of simple negligence, we shall be liable, subject to a milder standard of liability in accordance with statutory provisions (e.g. for care in our own affairs), only a) for damages resulting from injury to life, limb or health and b) for damages resulting from the not insignificant breach of a material contractual obligation (obligation whose fulfillment is essential for the proper execution of the contract and on whose compliance the contractual partner regularly relies and may rely); in this case, however, our liability shall be limited to compensation for foreseeable, typically occurring damage.

7.3 The limitations of liability resulting from clause 7.2 shall also apply in the event of breaches of duty by or in favor of persons whose fault we are responsible for in accordance with statutory provisions. They shall not apply if we have fraudulently concealed a defect or have assumed a guarantee for the quality of the goods and for claims of the Buyer under the Product Liability Act.

7.4 The Buyer may only withdraw from or terminate the contract due to a breach of duty that does not consist of a defect if we are responsible for the breach of duty. A free right of termination of the Buyer (in particular pursuant to §§ 650, 648 BGB) is excluded. In all other respects, the statutory requirements and legal consequences shall apply.

8. REJUVENATION

8.1 Notwithstanding Section 438 (1) No. 3 BGB, the general limitation period for claims arising from material defects and defects of title is one (1) year from delivery. If acceptance has been agreed, the limitation period shall commence upon acceptance.

8.2 However, if the goods are a building or an item that has been used for a building in accordance with its normal use and has caused its defectiveness (building material), the limitation period shall be five (5) years from delivery in accordance with the statutory provisions (Section 438 (1) No. 2 BGB). Other special statutory provisions on the limitation period shall remain unaffected (in particular § 438 para. 1 no. 1, para. 3, §§ 444, 479 BGB).

8.3 The above limitation periods of the law on sales shall also apply to contractual and non-contractual claims for damages of the Buyer based on a defect of the goods, unless the application of the regular statutory limitation period (Sections 195, 199 BGB) would lead to a shorter limitation period in individual cases. However, the Buyer’s claims for damages pursuant to clause 7.2 sentence 1 and sentence 2 a) and pursuant to the Product Liability Act shall become time-barred in accordance with the statutory provisions.

9. RESERVATION OF TITLE

9.1 The Seller retains title to the goods until the purchase price has been paid in full.

9.2 If the goods subject to retention of title are processed by the Buyer into a new movable item, the processing shall be carried out for the Seller without the Seller being obligated 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 the ratio of the value of the reserved goods to the other goods at the time of processing. If the goods subject to retention of title are combined, mixed or mixed with goods not belonging to the seller in accordance with §§ 947, 948 BGB If the Buyer acquires sole ownership of the goods at the time of combining, mixing or blending, he hereby assigns co-ownership to the Seller in proportion to the value of the goods subject to retention of title to the other goods at the time of combining, mixing or blending. In such cases, the Buyer shall store the item owned or co-owned by the Seller, which is also deemed to be goods subject to retention of title within the meaning of the above conditions, free of charge.

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, however, shall not be taken into account if it is opposed by third party rights. 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 value of the seller’s share in the co-ownership.

9.4 If goods subject to retention of title are installed by the Buyer as an essential component in an immovable object (a) of a third party or (b) of the Buyer, the Buyer hereby assigns the assignable claims for remuneration arising against (a) the third party or (b) the purchaser in the event of sale 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 rest; the Seller accepts the assignment. Clause 9.3, sentences 2 and 3 shall apply accordingly.

9.5 The Buyer shall only be entitled and authorized to resell, use or install the goods subject to retention of title in the ordinary course of business and only on condition that the claims within the meaning of clause 9.3 or 9.4 are actually transferred to the Seller. The Buyer shall not be entitled to dispose of the reserved goods in any other way, in particular by pledging them or assigning them as security.

9.6 The Seller authorizes the Buyer, subject to revocation, to collect the claims assigned in accordance with Clauses 9.3 and 9.4. The Seller shall not make use of its own authorization to collect as long as the Buyer meets its payment obligations, including to 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 is authorized to notify the debtors of the assignment itself.

9.7 The right to resell, use or install the goods subject to retention of title or the authorization to collect the assigned claims shall expire upon suspension of payment and/or application for the opening of insolvency proceedings. This shall not apply to the rights of the insolvency administrator.

9.8 If the value of the securities granted exceeds the claims (possibly reduced by down payments and partial payments) by more than 20 %, the seller shall be obliged to retransfer or release them at his discretion.

10. FINAL PROVISIONS

10.1 The place of performance and jurisdiction for deliveries and payments (including actions on checks and bills of exchange) as well as all disputes arising between the parties shall be the Seller’s headquarters if the Buyer is a merchant, a legal entity under public law or a special fund under public law. The same shall apply if the Buyer is an entrepreneur (§ 14 BGB). However, in all cases we shall also be entitled to bring an action at the place of performance of the delivery obligation in accordance with these GTD or an overriding individual agreement or at the Buyer’s general place of jurisdiction. Overriding statutory provisions, in particular regarding exclusive jurisdiction, shall remain unaffected.

10.2 The relationship 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.

10.3 If the Seller is prevented from fulfilling its obligations due to the occurrence of unforeseeable, extraordinary circumstances which it cannot avert despite exercising reasonable care in the circumstances of the case, e.g. operational disruptions, official interventions, energy supply difficulties, strikes or pandemics, regardless of whether these circumstances occur in the area of the Seller or a supplier, the delivery period or the period for performance shall be extended to a reasonable extent. If performance becomes impossible due to the aforementioned circumstances, the Seller shall be released from its performance obligations.

10.4 The Buyer is hereby informed that the Seller processes the necessary personal data obtained in the course of the business relationship in accordance with the provisions of the applicable European and German data protection laws for the purpose of conducting business.

10.5 Should any provision of these GT&Cs be invalid (e.g. unlawful or otherwise unenforceable), this invalidity shall not affect the validity of the remaining provisions. The invalid provision shall be replaced by a mutually agreed, legally valid provision that has a similar and valid economic and legal effect. The same applies to any gaps or omissions in the ALZ.

All rights reserved by GD Holz e.V. Reproduction and/or use by non-members prohibited.

Original version notified by Gesamtverband Deutscher Holzhandel e.V., Wiesbaden, to the Federal Cartel Office on March 22, 2002 pursuant to Section 38 (2) No. 3 GWB and published in the Federal Gazette No. 80 of April 27, 2002.

B. Customer information

1. identity of the seller

Schmidt GmbH

Engerser Landstraße 137
D 56564 Neuwied

E-mail: info@profilleisten.eu

Tel.: 02631/83970
Fax: 02631/839730

Managing partners:
Jürgen Schmidt, Eric Schmidt, Christian Schmidt

Register court Montabaur: HRB 11573

VAT ID No.: DE 149519881

2. information on the essential characteristics of the goods or services

The essential characteristics of the goods or services are set out in the respective product description posted by the seller.

3. information on the conclusion of the contract

The contract is concluded in accordance with clause 2 of the seller’s General Terms and Conditions (see above).

4. information on payment and delivery

Payment shall be made in accordance with Clause 5 and delivery in accordance with Clause 6 of the Seller’s General Terms and Conditions (see above).

5. information on the technical steps leading to the conclusion of the contract

The contract is concluded by offer and acceptance.

5.1. If the customer uses the seller’s online order form for his order, he submits his offer as follows:

5.1.1. On the seller’s product offer page, the customer clicks on the “Add to shopping cart” button in the first step. A new page then opens showing the contents of the shopping cart.

5.1.2. The customer then clicks on the “Order” button in the second step, either directly or after adding further goods to the virtual shopping cart. In an intermediate step, the customer must either register and open a customer account or log in if they are already registered as a customer. If he is already registered as a customer, he fills in the fields “E-mail address” and “Password” and then clicks on the “Log in” button. If he is not yet registered as a customer, he enters his e-mail address and clicks on the “Log in” button. He then fills out the form and clicks on the “Continue” button. A new page then opens, which displays the billing address and delivery address and gives the option of selecting the payment method.

5.1.3. The customer then clicks on the “Order” button. A new page then opens, which summarizes the details of the order.

5.1.4. In the last step, the customer clicks on “Order”.

5.2. Acceptance by the Seller shall be in accordance with Section 2.3 of the Seller’s General Terms and Conditions (see above).

6. information on the storage of the contract text

The text of the contract is saved by the seller and sent to the customer in text form (e.g. e-mail, fax or letter) together with these GTC and customer information after the order has been sent. In addition, the text of the contract is archived on the seller’s website and can be accessed by the customer free of charge via his password-protected customer account by entering the corresponding login data, provided that the customer has created a customer account in the seller’s online store before sending his order.

7. information on the technical means for recognizing and correcting input errors

Before binding submission of the order, the customer can correct his entries at any time using the usual keyboard and mouse functions. In addition, all entries are displayed again in a confirmation window before the binding submission of the order and can also be corrected there using the usual keyboard and mouse functions.

8. information on the languages available for the conclusion of the contract

Only the German language is available for the conclusion of the contract.