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General Terms and Conditions

General Terms and Conditions of Delivery and Payment (“GTC”) of Heinrich Abresch Holzgroßhandlung GmbH

1. Scope of application

1.1. All contracts, deliveries and other services in business dealings with non-consumers are governed by the customs of the timber trade, in particular by the Tegernseer Gebräuche (Tegernsee Customs of the Timber Trade) in their latest version together with their annexes and appendix, unless otherwise provided below.

1.2. Deviating conditions – in particular the Buyer’s purchasing conditions – are not binding insofar as they conflict with these GTC, even if they are not expressly objected to again.

1.3. Within an ongoing business relationship these GTC shall also apply if reference to their validity has not been made again in the individual case.

2. Offers, orders and conclusion of contract

2.1. The Seller is not bound by offers prior to their express and binding acceptance; its offers are always subject to change – prior sale reserved.

2.2. Value added tax at the applicable rate shall be added to the sales price. Depending on the agreement, prices are quoted free on board at the place of dispatch of the goods or free receiving station with unloading on site by the customer.

If more than three months elapse between the conclusion and the performance of a contract, price increases to a reasonable extent remain reserved insofar as taxes, customs duties, freight charges or wage and salary rates have been increased in the meantime.

2.3. Orders shall be deemed accepted if they are either confirmed in writing by the Seller or carried out without delay upon receipt of the order.

3. Delivery, passing of risk and default

3.1. The place of performance for the Seller’s delivery is the loading point, i.e. as soon as the goods have been made available there, the risk passes to the Buyer.

3.2. If the Seller assumes the freight, the freight costs shall be paid by the Buyer without cash discount.

3.3. Delivery free construction site or free warehouse means delivery without unloading and on condition that the access road is passable for heavy goods vehicles. If the vehicle leaves the passable road on the Buyer’s instructions, the Buyer shall be liable for any damage resulting therefrom. Unloading must be carried out by the Buyer without delay and in a proper manner. Waiting times of one hour or more will be charged to the Buyer.

3.4. Partial deliveries are permissible at any time.

3.5. Failure to meet delivery dates and delivery periods entitles the Buyer to assert the rights to which it is entitled, after setting a reasonable period of grace of at least 8 working days.

3.6. If the failure to meet the dates or periods is attributable to force majeure, e.g. strike, civil commotion, weather conditions or traffic disruptions, the periods shall be extended accordingly.

This shall also apply with regard to the Seller’s suppliers.

3.7. If the Seller is in default, the Buyer may, where it substantiates a loss, claim compensation of 0.5% for each completed week of the default, but in total no more than 5% of the value of the delivery affected, as liquidated damages.

Both claims of the Buyer for damages on account of delayed delivery and claims for damages in lieu of performance which exceed the limits stated in 3.7. are excluded in all cases of delayed delivery, including after expiry of any period for delivery that may have been set for the Seller. This shall not apply insofar as the Seller is subject to mandatory liability in the cases stated in 6.1.

3.8. Any claim for damages by the Buyer is limited solely to reimbursement of demonstrated additional costs. A covering purchase requires that at least three comparative quotations be obtained. Any claims for damages going beyond this are excluded.

3.9. The Buyer may withdraw from the contract only insofar as the Seller is responsible for the delay in delivery.

3.10. At the Seller’s request, the Buyer is obliged to declare within a reasonable period whether it withdraws from the purchase on account of the delay in delivery or insists on delivery.

4. Terms of payment

4.1. Unless otherwise agreed, the purchase price is due upon receipt of the goods without deduction.

4.2. In the event of default in payment, the Seller is entitled to demand interest at a rate of 9 percentage points above the base rate (Basiszinssatz).

4.3. In the event of failure to comply with payment periods and other terms of payment, suspension of payments, an application for the opening of insolvency proceedings in respect of the Buyer’s assets, or the occurrence or becoming known of other circumstances which may give rise to justified doubts as to the Buyer’s solvency, all outstanding claims of the Seller against the Buyer may be called in for immediate payment, in the case of bills of exchange also irrespective of their term. The Seller is then further entitled, in addition to asserting interest pursuant to 4.2., to carry out deliveries still outstanding, including those arising from other contracts, only against reasonable advance payment or the provision of security and, if these are not forthcoming, to withdraw from the contract or to claim damages for non-performance.

4.4. Employees working in the Seller’s field service and its drivers are not entitled to accept payments without express authorisation.

4.5. Set-off is permissible only against counterclaims that are acknowledged or have been established with final legal effect.

4.6. Refusal or withholding of payment is excluded if the Buyer was aware of the defect or other ground for complaint when the contract was concluded. This shall also apply if it remained unknown to the Buyer as a result of gross negligence, unless the Seller fraudulently concealed the defect or other ground for complaint or assumed a guarantee for the quality of the goods.

In all other respects, payment may be withheld on account of defects or other complaints only to a reasonable extent. In the event of a dispute, the amount shall be determined by an expert appointed by the Industrie- und Handelskammer (IHK, the German Chamber of Industry and Commerce) at the Buyer’s registered office. That expert shall also decide, at its reasonable discretion, on the apportionment of the costs of its involvement.

5. Warranty – notice of defects – damages

5.1. Properties of timber

Timber is a natural product; its natural properties, variations and characteristics must therefore always be taken into account. In particular, the Buyer must take its biological, physical and chemical properties into account when purchasing and using it. The range of natural differences in colour, structure and other respects within a species of timber forms part of the properties of the natural product timber and does not constitute any ground for complaint or liability whatsoever.

Where appropriate, the Buyer must obtain expert advice.

5.2. For the question whether a material defect exists, the commercial practice applicable to dealings in round timber, sawn timber and semi-finished timber products shall additionally be decisive, and between merchants in particular also the “Tegernseer Gebräuche” (Tegernsee Customs of the Timber Trade) together with their annexes and appendix, unless otherwise provided in these GTC.

5.3. Unless otherwise agreed, the goods to be delivered are produced from fresh round timber. An agreed timber moisture content is deemed to be an approximate target moisture content, taking customary tolerances into account. In the case of technical drying, the agreed moisture content refers to the time at which the drying chamber is emptied.

5.4. The Seller is liable for defects within the meaning of § 434 BGB (German Civil Code) only as follows: the Buyer must inspect the goods received for quantity and quality without delay.

Obvious defects (within the meaning of §§ 434, 435 BGB (German Civil Code), thus in particular also incorrect deliveries or the delivery of a short quantity) must in every case be notified in writing without delay, at the latest within 14 calendar days from the date of receipt of the goods by the Buyer. In the case of discolouration, however, the period for giving notice is reduced to 7 calendar days, unless delivery of dry goods was agreed.

Defects that are not obvious, including those that become apparent during or after processing (within the meaning of §§ 434, 435 BGB (German Civil Code), thus in particular also incorrect delivery or delivery of a short quantity), must be notified without delay after their discovery, at the latest within 14 calendar days. This does not apply to round timber and sawn timber. In that case a notice of defects, including for hidden defects, is possible only within 14 calendar days and, in the case of discolouration, within 7 calendar days after handover of the goods. The obligations to inspect under § 377 HGB (German Commercial Code) remain unaffected.

5.5. In the case of justified complaints, the Seller is 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. If rectification fails even after the second attempt, the Buyer may demand a reduction of the price or withdraw from the purchase.

In the case of minor defects the Buyer has no right of withdrawal. Defects in part of the goods delivered do not entitle the Buyer to complain about the entire delivery, unless the partial delivery is of no interest to the Buyer. Furthermore, liability is excluded for defects that do not impair the value or the fitness for use, or impair it only insignificantly. Excess or short deliveries of up to 10% of the goods ordered cannot be objected to.

The Seller is liable for the absence of warranted characteristics only insofar as the warranty is intended to protect the Buyer precisely against the consequential loss arising from the absence of those characteristics. Mere reference to DIN or EN standards does not make their content a warranted characteristic.

5.6. If the Buyer discovers defects in the goods, it may not dispose of them, i.e. they may not be divided, resold or further processed, until agreement has been reached on how the complaint is to be handled or until the preservation of evidence has been carried out by an expert appointed by the IHK at the Buyer’s registered office.

The Buyer must inform the Seller as promptly as possible of any warranty case arising in relation to a consumer.

5.7. Claims for material defects become time-barred after 12 months. This does not apply insofar as the law prescribes longer periods pursuant to § 438 (1) no. 2 BGB (German Civil Code) (buildings and objects used for buildings), § 479 (1) BGB (right of recourse) and § 634a (1) no. 2 BGB (defects in building work).

6. General limitation of liability

6.1. Claims of the Buyer for damages and for reimbursement of expenses (hereinafter: claims for damages), on whatever legal grounds, in particular on account of breach of duties arising from an obligation and from tort, are excluded.

This does not apply in cases where a guarantee or a procurement risk has been assumed.

Nor does it apply insofar as liability is mandatory, e.g. under the Produkthaftungsgesetz (German Product Liability Act), in cases of gross fault, on account of injury to life, body or health, or breach of material contractual obligations. However, the claim for damages for breach of material contractual obligations is limited to the foreseeable loss typical of the contract, insofar as there is no gross fault and no liability for injury to life, body or health. This does not involve any change in the burden of proof to the Buyer’s detriment.

6.2. This provision applies accordingly to the Buyer.

7. Retention of title

7.1. The Seller retains title to the goods until the purchase price has been paid in full. In the case of goods that the Buyer obtains from the Seller within the ongoing business relationship, the Seller retains title until all its claims against the Buyer arising from the business relationship, including future claims, also from contracts concluded at the same time or later, have been settled. This also applies if individual claims or all claims of the Seller have been included in a current account and the balance has been struck and acknowledged.

If, in connection with the payment of the purchase price by the Buyer, a liability of the Seller under a bill of exchange is established, the retention of title shall not lapse before the bill of exchange has been honoured by the Buyer as drawee.

If the Buyer is in default of payment, the Seller is entitled to take back the goods after a reminder and the Buyer is obliged to surrender them.

7.2. If the goods subject to retention of title are processed by the Buyer into a new movable item, the processing is carried out for the Seller without the Seller incurring any obligation as a result; the new item becomes the property of the Seller. In the case of processing together with goods not belonging to the Seller, the Seller acquires co-ownership of the new item in the ratio of the value of the goods subject to retention of title to the other goods at the time of processing. If the goods subject to retention of title are combined, blended or mixed with goods not belonging to the Seller pursuant to §§ 947, 948 BGB (German Civil Code), the Seller becomes a co-owner in accordance with the statutory provisions. If the Buyer acquires sole ownership through combination, blending or mixing, it hereby transfers to the Seller co-ownership in the ratio of the value of the goods subject to retention of title to the other goods at the time of the combination, blending or mixing. In these cases the Buyer must store free of charge the item owned or co-owned by the Seller, which likewise counts as goods subject to retention of title within the meaning of the above conditions.

7.3. 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 ranking ahead of the remainder; the Seller accepts the assignment. The value of the goods subject to retention of title is the Seller’s invoice amount, which shall, however, be disregarded insofar as third-party rights conflict with it.

If the resold goods subject to retention of title are co-owned by the Seller, the assignment of claims extends to the amount corresponding to the value of the Seller’s share in the co-ownership.

7.4. If goods subject to retention of title are installed by the Buyer as an essential component in the land, 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 against whomever it may concern, in the amount of the value of the goods subject to retention of title, with all ancillary rights and ranking ahead of the remainder; the Seller accepts the assignment. Paragraph 7.3, sentences 2 and 3, apply accordingly.

7.5. If goods subject to retention of title are installed by the Buyer as an essential component in the Buyer’s land, ship, ship under construction or aircraft, the Buyer hereby assigns the claims arising from a sale of the land, of rights in land, of the ship, the ship under construction or the aircraft, in the amount of the value of the goods subject to retention of title, with all ancillary rights and ranking ahead of the remainder; the Seller accepts the assignment. Paragraph 7.3., sentences 2 and 3, apply accordingly.

7.6. The Buyer is entitled and authorised to resell, use or install the goods subject to retention of title only in the ordinary and proper course of business and only on the condition that the claims within the meaning of paragraphs 7.3 to 7.5 actually pass to the Seller. The Buyer is not entitled to dispose of the goods subject to retention of title in any other way, in particular by pledging them or transferring them by way of security.

7.7. The Seller authorises the Buyer, subject to revocation, to collect the claims assigned pursuant to paragraphs 7.3 to 7.5. The Seller will not make use of its own collection authority as long as the Buyer meets its payment obligations, including those towards third parties. At the Seller’s request, the Buyer must name the debtors of the assigned claims and notify them of the assignment; the Seller is authorised to notify the debtors of the assignment itself.

7.8. The Buyer must inform the Seller without delay of any enforcement measures by third parties against the goods subject to retention of title or against the assigned claims, handing over the documents necessary for an objection.

7.9. Upon suspension of payments and/or an application for the opening of insolvency proceedings, the right to resell, use or install the goods subject to retention of title and the authority to collect the assigned claims shall lapse; in the event of a protest of a cheque or bill of exchange the collection authority shall likewise lapse. This does not apply to the rights of the insolvency administrator.

7.10. If the value of the securities granted exceeds the claims (reduced, where applicable, by down payments and part payments) by more than 20%, the Seller is obliged to retransfer or release them to that extent, at its own choice. Upon settlement of all the Seller’s claims arising from the business relationship, title to the goods subject to retention of title and the assigned claims pass to the Buyer.

8. Place of jurisdiction – applicable law – data processing

8.1. In the case of disputes arising from contractual relationships with merchants, the sole place of jurisdiction for all disputes arising directly or indirectly from the contractual relationships is the Seller’s registered office. The Seller is also entitled to bring an action at the Buyer’s registered office.

8.2 The relations between the contracting parties are 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.

8.3 The Buyer is informed that the Seller processes the Buyer’s company-related and personal data in accordance with the provisions of the Bundesdatenschutzgesetz (German Federal Data Protection Act) for the purpose of implementing the contractual relationship with the Seller. In this connection, reference is made to the Seller’s supplementary information on data processing set out below.

Supplementary information on data processing

1. Name and contact details of the controller

This data protection information applies to data processing by:

Heinrich Abresch Holzgroßhandlung GmbH,
represented by its managing directors Heike Abresch and Joachim Klemm,
Max-Planck-Straße 28, D-68519 Viernheim;
Telephone +49 6204 96210, e-mail: info@holz-abresch.de, as controller pursuant to Art. 4 (7) EU-Datenschutz-Grundverordnung (DSGVO – EU General Data Protection Regulation, GDPR).

2. Collection and storage of personal data, and the nature, purpose and use thereof

When you place an order with us, we collect the following information:

  • form of address, first name, surname,
  • a valid e-mail address,
  • postal address,
  • telephone number (landline and/or mobile)
  • information that is necessary for carrying out your order

This data is collected,

  • in order to be able to identify you as our customer;
  • in order to be able to carry out the order properly;
  • for correspondence with you;
  • for invoicing;
  • for the handling of any liability claims that may arise and for asserting any claims against you;

The data is processed at your request and is necessary pursuant to Art. 6 (1) sentence 1 lit. b GDPR for the purposes stated, for the proper handling of the order and for the mutual performance of obligations arising from the contract.

The personal data collected by us for carrying out the order is stored until expiry of the statutory retention obligation (6 years after the end of the calendar year in which the order was carried out) and is deleted thereafter, unless we are obliged pursuant to Art. 6 (1) sentence 1 lit. c GDPR to store it for a longer period on account of retention and documentation obligations under tax and commercial law (arising from the HGB (German Commercial Code), StGB (German Criminal Code) or AO (German Fiscal Code)), or you have consented to storage beyond that period pursuant to Art. 6 (1) sentence 1 lit. a GDPR.

3. Transfer of data to third parties

Your personal data is not transferred to third parties for purposes other than those listed below.

Insofar as this is necessary pursuant to Art. 6 (1) sentence 1 lit. b GDPR for the handling of contractual relationships with you, your personal data is passed on to third parties. This includes in particular transfer to suppliers or carriers. The data transferred may be used by the third party exclusively for the purposes stated.

4. Rights of data subjects

You have the right:

  • pursuant to Art. 7 (3) GDPR, to withdraw at any time, vis-à-vis us, any consent you have given. The consequence of this is that we may no longer continue in the future the data processing that was based on this consent;
  • pursuant to Art. 15 GDPR, to request information about your personal data processed by us. In particular, you may request information about the purposes of processing, the category of personal data, the categories of recipients to whom your data has been or will be disclosed, the planned storage period, the existence of a right to rectification, erasure, restriction of processing or objection, the existence of a right to lodge a complaint, the origin of your data if it was not collected by us, and the existence of automated decision-making including profiling and, where applicable, meaningful information about the details thereof;
  • pursuant to Art. 16 GDPR, to request the immediate rectification of incorrect personal data stored by us, or the completion of your personal data stored by us;
  • pursuant to Art. 17 GDPR, to request the erasure of your personal data stored by us, unless the processing is necessary for exercising the right to freedom of expression and information, for compliance with a legal obligation, for reasons of public interest, or for the establishment, exercise or defence of legal claims;
  • pursuant to Art. 18 GDPR, to request the restriction of the processing of your personal data insofar as the accuracy of the data is contested by you, the processing is unlawful but you refuse its erasure and we no longer require the data although you require it for the establishment, exercise or defence of legal claims, or you have objected to the processing pursuant to Art. 21 GDPR;
  • pursuant to Art. 20 GDPR, to receive your personal data that you have provided to us in a structured, commonly used and machine-readable format, or to request its transfer to another controller, and
  • pursuant to Art. 77 GDPR, to lodge a complaint with a supervisory authority. As a rule, you may contact the supervisory authority of your usual place of residence or place of work, or that of our registered office, for this purpose.

5. Right to object

Insofar as your personal data is processed on the basis of legitimate interests pursuant to Art. 6 (1) sentence 1 lit. f GDPR, you have the right, pursuant to Art. 21 GDPR, to object to the processing of your personal data where there are grounds relating to your particular situation.

If you wish to exercise your right to object, an e-mail to info@holz-abresch.de is sufficient.

This English version is a translation provided for ease of understanding. In the event of any discrepancy, only the German version of these General Terms and Conditions shall be legally binding.