Terms & Conditions
Annex: Conditions of Trading
1. |
Scope of application |
| 1.1. | The following provisions (“Provisions“) apply in accordance with section 2.3 (“Indirect” model) of the General Terms and Conditions for the use of the “Timber Base” marketplace of Timber Base GmbH by participants (“GTC“). The Provisions supplement the GTC regarding purchase contracts for products (hereinafter “Goods“) which Timber Base itself concludes with participants and, insofar as they contain regulations or deviating definitions concerning the aforementioned “Indirect” model, enjoy priority of validity over the provisions of the GTC. In all other respects, the definitions contained in the GTC also apply to these Provisions. |
| 1.2. | Individual agreements made in individual cases (including ancillary agreements, supplements and amendments) between the parties, i.e. between Timber Base and participants who purchase Goods from Timber Base (“Buyer“) or sell the Goods to Timber Base (“Seller“) shall in turn take precedence over these Provisions in all cases. Clause 1.3 of the GTC also expressly applies to contracts for the sale of Goods with Buyers or Sellers. Provisions in general terms and conditions of Sellers or Buyers do not apply unless Timber Base has expressly agreed to their validity. Deviating or contradictory terms and conditions therefore only apply if they have been acknowledged in writing by Timber Base. |
2. |
Conclusion of contract with Sellers |
| 2.1. | Product offers Offers by the Seller (e.g. by email), which are directed at offering Timber Base Goods for sale, are considered to be a binding contractual offer. They can be accepted by Timber Base within fourteen (14) days either in writing or in text form, unless otherwise stated in the order. The beginning of the period is the receipt of the offer by Timber Base. |
3. |
Conclusion of contract with Buyers |
| 3.1. | Product offers Orders placed by the Buyer are considered to be a binding contractual offer. They can be accepted by Timber Base within fourteen (14) days either in writing or in text form, unless otherwise stated in the order. The beginning of the period is the receipt of the offer by Timber Base. |
| 3.2. | Product auctions Timber Base can conduct product auctions as an auction Seller in accordance with section 4.2.1 (Product Auctions) of the GTC. The Provisions of section 4.2 (Product Auctions) of the GTC apply accordingly to the conclusion of the contract between Timber Base and Buyers. |
4. |
Delivery by Timber Base to Buyer |
| 4.1 | Timber Base is entitled to make partial deliveries if • the partial delivery is usable for the Buyer within the scope of the contractual intended purpose, • the delivery of the remaining ordered Goods is ensured, and • the Buyer does not incur any significant additional work or costs as a result (unless Timber Base agrees to bear these costs) |
| 4.2. | The agreement of fixed transactions requires the express written confirmation by Timber Base. |
| 4.3. | The occurrence of default in delivery by Timber Base is governed by the statutory provisions. However, only a warning notice from the Buyer puts Timber Base in default. Section 12 (Liability and limitations of liability, compensation for damages due to fault) applies to damage caused to the Buyer by default. The statutory rights of Timber Base, in particular in the event of exclusion of the obligation to perform, remain unaffected. |
| 4.4. | If Timber Base is unable to meet a binding delivery or service date for reasons for which Timber Base is not responsible (“non-availability of Goods“), Timber Base shall inform the Buyer of this without delay and at the same time inform the Buyer of the expected new /service or delivery date. If the service or delivery is also not available within the new delivery or service period, Timber Base is entitled to withdraw from the contract in whole or in part. Timber Base will immediately refund any consideration already paid by the Buyer. A case of non-availability of Goods is also deemed to be a case of non-timely self-delivery by a supplier of Timber Base if neither Timber Base nor the supplier is at fault or if Timber Base is not obliged to procure in the individual case. Statutory rights of withdrawal remain unaffected. |
5. |
Terms of delivery, passing of risk, place of performance and default of acceptance in relation to Buyers |
| 5.1. | Unless otherwise agreed, the Goods shall be delivered to the place of delivery agreed with the Buyer. The agreed place of delivery is both the place of performance for the delivery and for any subsequent cure. The passing of risk shall be measured according to the agreed Incoterm, unless otherwise agreed. |
| 5.2. | If the Buyer is in default of acceptance, fails to cooperate or if the delivery by Timber Base is delayed for other reasons for which the Buyer is responsible, Timber Base is entitled to demand compensation for the resulting damage. Timber Base is also entitled to demand compensation from the Buyer for the additional expenses incurred due to the delay in acceptance (e.g. storage costs). |
6. |
Terms of delivery, passing of risk, place of performance and default of acceptance in relation to Sellers |
| 6.1. | Where a time of delivery has been specified by Timber Base (delivery date or period), this date or period is binding. The Seller cannot deliver prior to that time. |
| 6.2. | The Seller is not entitled to make partial deliveries without Timber Base prior written consent. |
| 6.3. | Even if shipping has been agreed, the risk is only transferred to Timber Base when the Goods are handed over to Timber Base at the agreed destination. |
7. |
Prices and invoices |
| 7.1. | The prices quoted by Timber Base are net prices, i.e. they do not include VAT. The prices are in EURO, unless otherwise stated. |
| 7.2. | The invoices issued by Timber Base to the Buyer shall be deemed to be complete and correct in all respects unless the Buyer objects with justified reason within thirty (30) days of receipt of the invoice. The claims from section 11 (legal consequences of the breach of quality agreements, liability for defects vis-à-vis Buyers) remain unaffected. |
8. |
Terms of payment in relation to Buyers |
| 8.1. | Unless the parties agree otherwise (e.g. in export business), the purchase price shall be due for payment within fourteen (14) days after invoicing and delivery of the Goods. If the Buyer does not pay within the above payment period, he shall be in default unless he is not responsible for the failure to pay. During the period of default, interest shall be charged on the purchase price at the applicable statutory default interest rate. Timber Base reserves the right to assert further damage caused by default. |
| 8.2. | If the Buyer is in default of payment in whole or in part and Timber Base withdraws from the contract after the fruitless expiry of a reasonable period of grace for the payment of the (remaining) purchase price (insofar as such a period of grace is not dispensable in accordance with § 323 para. 2 BGB (GERMAN CIVIL CODE)), the Buyer owes Timber Base liquidated damages in the amount of 25 % of the agreed purchase price as minimum damages. The right to assert a claim for damages in excess of this remains unaffected. Insofar as the Buyer has made an advance payment, Timber Base is entitled to satisfy its claim for damages against the Buyer by way of set-off from the advance payment made by the Buyer. |
| 8.3. | In the event of circumstances subsequently occurring or becoming known which rise doubts about the solvency and creditworthiness of the Buyer and which indicate that the claim of Timber Base to the purchase price is at risk due to a lack of solvency on the part of the Buyer, Timber Base is authorised – without prejudice to other rights, |
| 8.3.1. | to refuse performance in accordance with the statutory provisions and – if necessary after setting a deadline – to withdraw from the contract (§ 321 BGB (GERMAN CIVIL CODE)); |
| 8.3.2. | to demand additional securities for delivered Goods up to the limit specified in clause 10.5; |
| 8.3.3. | demand advance payment for outstanding deliveries; and |
| 8.3.4. | to demand immediate payment of all outstanding invoices (including those not yet due) in respect of deliveries already made. |
| 8.4. | The Buyer may only offset counterclaims against Timber Base if these have been legally established or are undisputed by Timber Base. Likewise, the Buyer is only entitled to rights of retention insofar as his claim has been legally established or this is undisputed by Timber Base. The counter rights of the Buyer in the event of defects in the delivery remain unaffected. |
9. |
Terms of payment in relation to Sellers |
| 9.1. | The purchase price shall be paid by Timber Base within thirty (30) days after invoicing and delivery of the Goods. |
| 9.2. | In the event of default in payment Timber Base shall owe default interest in the amount of five percentage points above the base interest rate in accordance with § 247 BGB (GERMAN CIVIL CODE). |
10. |
Retention of title in relation to Buyers |
| 10.1. | Until full payment of all claims to which Timber Base is entitled against the Buyer from the business relationship, the Goods sold to the Buyer remain the property of Timber Base (hereinafter referred to as “reserved Goods“). However, the Buyer is authorised to resell and process the reserved Goods in the ordinary course of business. The Buyer is not entitled to pledge, transfer by way of security or otherwise encumber the reserved Goods. |
| 10.2. | The Buyer hereby assigns to Timber Base any claims against third parties arising from the resale of Goods subject to retention of title. The Buyer is authorised to collect these claims until revoked by Timber Base. Timber Base is in particular entitled to revoke revoke the Buyer’s authority to further sell and process the Goods subject to retention of title if the Buyer does not meet his payment obligations toward Timber Base, if there is a deficiency in its ability to pay or if Timber Base asserts its rights under subsection 10.4. After revocation, the Buyer is obliged, upon request by Timber Base, to provide Timber Base with all information required for the collection of the assigned claims, including the documents required for enforcement, and to notify its debtors of the assignment. The Buyer is not entitled to otherwise assign, pledge or otherwise encumber these claims. This also applies to the assignment for the purpose of the collection of claims by way of factoring, unless the obligation of the factor to effect the counter-performance in the amount of Timber Base’s share of the claim directly to Timber Base is established at the same time for as long as Timber Base still has claims against the Buyer. |
| 10.3. | The Buyer must inform Timber Base immediately of enforcement measures and other access by third parties to Goods subject to retention of title. |
| 10.4. | If the Buyer acts in breach of the contract (e.g. default in payment), Timber Base is entitled to withdraw from the contract in accordance with the statutory provisions and/or to demand the return of the reserved Goods on the basis of the retention of title. The demand for surrender of the Goods subject to retention of title does not at the same time constitute a declaration of withdrawal unless this is expressly declared by Timber Base. If the Buyer does not pay the due purchase price, Timber Base may only assert these rights if Timber Base has previously unsuccessfully set the Buyer a reasonable deadline for payment or if such setting of a deadline is dispensable according to the statutory provisions. |
| 10.5. | If the realisable value of the securities granted to Timber Base exceeds claims of Timber Base against the Buyer by 10 % or more, Timber Base shall release securities to this extent at its discretion at the request of the Buyer. |
| 10.6. | During the period in which Timber Base retains title to the Goods subject to retention of title, the Buyer is obliged to maintain these Goods in a sound condition that ensures their saleability; to compensate Timber Base for any damage caused to these Goods during this period; and to ensure that the Goods subject to retention of title by Timber Base are marked in such a way that third parties can easily recognise that these Goods are the property of Timber Base. |
| 10.7. | In the event of loss, damage or destruction of the Goods subject to retention of title, the Buyer already now assigns to Timber Base any claims for compensation arising against third parties (e.g. insurance claims or claims arising from tort). |
| 10.8. | If the Goods subject to retention of title are processed by the Buyer, it is hereby agreed that the processing is conducted in the name and on behalf of Timber Base as manufacturer – without Timber Base incurring any obligations as a result – and that Timber Base acquires direct ownership or – if the processing is conducted using materials from several owners or the value of the processed item is higher than the value of the Goods subject to retention of title – co-ownership (fractional ownership) of the newly created item in the ratio of the value of the Goods subject to retention of title to the value of the newly created item. In the event that no such (co-)ownership acquisition should occur at Timber Base, the Buyer already now transfers its future ownership or – in the above-mentioned ratio – co-ownership of the newly created item to Timber Base. If the Goods subject to retention of title are combined or inseparably mixed with other items to form a uniform item and if one of the other items of the Buyer is to be regarded as the main item, the Buyer shall, insofar as the main item belongs to it, transfer to Timber Base pro rata co-ownership of the uniform item in the ratio specified in sentence 1. |
11. |
Legal consequences of breach of quality agreements and liability for defects vis-à-vis Buyers |
| 11.1. | All information provided by Timber Base with regard to the properties (e.g. intended use, processing, application, etc.) of the delivered Goods is given to the best of our knowledge, but is not an assurance or guarantee, but a statement of quality. They do not release the Buyer from his own inspections and other tests of the delivered Goods in accordance with the Provisions of these terms and conditions or in accordance with the statutory provisions. |
| 11.2. | Any claims for defects presuppose that the Buyer has fulfilled its obligations to inspect and give notice of defects regarding the Goods delivered by Timber Base in accordance with §§ 377, 381 HGB (German Commercial Code). If a defect becomes apparent upon delivery, inspection or at any later point in time, Timer Base must be informed in writing without delay. In any case, obvious defects (including wrong delivery and short delivery) must be reported in writing within ten (10) working days of delivery and defects not recognisable during inspection within the same period of ten (10) working days of discovery. If the Buyer fails to properly inspect the Goods and/or to notify Timber Base of any defects the Goods shall be deemed to have been approved with regard to the defect not notified or not notified in time or not notified properly. The Buyer can then no longer assert any claims for defects. |
| 11.3. | Notwithstanding § 438 para. 1 no. 3 BGB (German Civil Code), the general limitation period for claims arising from material defects and defects of title shall be one (1) year from delivery. Further statutory special regulations regarding the statute of limitations (in particular § 438 Para. 1 No. 1, Para. 2 and § 444 BGB (German Civil Code)) shall remain unaffected. However, claims for damages by the Buyer due to intentional or grossly negligent breach of duty, for damages arising from injury to life, limb or health and in the case of liability under the Product Liability Act shall become statute-barred exclusively in accordance with the statutory limitation periods. |
| 11.4 | In the event of defects in the delivered Goods, Timber Base is entitled, at its discretion and within a reasonable period of time, to remedy the defect (rectification) or to have a defect-free goods delivered (replacement delivery). Timber Base’s right to refuse subsequent performance under the statutory conditions remains unaffected. Timber Base is 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. |
| 11.5. | Unless otherwise agreed between the parties, the Buyer shall give Timber Base the time and opportunity required for the owed subsequent performance, in particular to hand over the rejected goods complained for inspection purposes. In the event of a replacement delivery, the Buyer must return the defective Goods to Timber Base in accordance with the statutory provisions. The expenses required for the purpose of inspection and subsequent performance, in particular transport, travel, labour and material costs, shall be borne or reimbursed by Timber Base in accordance with the statutory regulations if a defect actually exists. Otherwise Timber Base shall be entitled to demand reimbursement from the Buyer for the costs incurred as a result of the unjustified demand to remedy the defect (in particular inspection and transport costs), unless the Buyer could not recognize the lack of defectiveness . |
| 11.6. | If the supplementary performance has failed or a reasonable period to be set by the Buyer for the supplementary performance has expired without success or is dispensable according to the statutory provisions, the Buyer can withdraw from the purchase contract or reduce the purchase price. In the case of an insignificant defect, however, there is no right of withdrawal. |
| 11.7. | Timber Base shall only be liable for claims for damages by the Buyer or claims for compensation for futile expenses due to defects in accordance with section 11 (Liability and limitations of liability, compensation for damages due to fault). |
12. |
Liability and limitation of liability, compensation for damages due to fault |
| 12.1. | The liability of Timber Base vis-à-vis Buyers and Sellers, irrespective of the legal grounds, in particular for delay, defective delivery, breach of contract, breach of duties during contractual negotiations and tort, is limited in accordance with the Provisions of this section insofar as fault is relevant in each case. In all other respects the liability of Timber Base shall be measured in accordance with the statutory provisions. |
| 12.2. | Irrespective of the legal grounds, Timber Base shall be liable without limitation within the scope of fault liability for intent and gross negligence. |
| 12.3. | Timber Base is not liable in the event of simple negligence on the part of its organs, legal representatives, employees or other vicarious agents, insofar as this does not involve a breach of essential contractual obligations. Material contractual obligations are those the fulfilment of which is essential for the proper performance of the contract and on the observance of which contractual partner regularly relies and may rely. Insofar as Timber Base is liable for damages on the merits in accordance with this subsection, the liability of Timber Base is limited to the foreseeable damage typical for the contract. |
| 12.4. | In the event of liability for simple negligence, Timber Base’s liability to pay compensation for damage to property and further financial losses resulting therefrom shall be limited to an amount of EUR 25,000 per case of damage, even if a breach of material contractual obligations is involved. |
| 12.5. | The above exclusions and limitations of liability also apply to the same extent in favour of the organs, legal representatives, employees and other vicarious agents of Timber Base. |
| 12.6. | The exclusions and limitations of liability in this section do not apply to the liability of Timber Base in the event of fraudulent concealment of defects, in the event of the assumption of a guarantee for the quality of the Goods, due to injury to life, limb or health or for claims of the Buyer under the Product Liability Act. |
13. |
Indemnity for infringements of property rights or copyrights |
| 13.1. | In cases where Timber Base delivers the Goods according to drawings, samples, models or other specifications of Buyers or Sellers or sources them accordingly, the Buyer or Seller indemnifies Timber Base against all claims of third parties for alleged infringement of third-party property rights or infringement of copyrights based on the use of these drawings, samples, models or other specifications and will reimburse Timber Base for all necessary expenses in connection with the claim by these third parties resulting from such infringement of third-party property rights or copyrights, provided Timber Base is not at fault. In addition, the Buyer or Seller is liable to Timber Base for all damages resulting from such an infringement of third party rights. The claims according to this paragraph do not exist insofar as the Buyer or Seller proves that he is neither responsible for the infringement of property rights or copyrights nor should have known of the infringement at the time of provision if he had exercised commercial diligence. |
| 13.2. | Further legal rights of Timber Base remain unaffected by the above Provisions. |
14. |
Other |
| The provisions of Section 18 (Miscellaneous) of the GTC shall apply accordingly. The law of the Federal Republic of Germany shall expressly apply exclusively to the exclusion of the uniform UN Convention on Contracts for the International Sale of Goods (CISG). The exclusive place of jurisdiction is Berlin. |
