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elka

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elka-Holzwerke GmbH
Delivery and Payment Conditions of elka-Holzwerke GmbH

Stand: 01.10.2021

Section 1 General information
1. Unless expressly agreed otherwise, in addition to the practices followed in the wood industry (Tegernsee
Practices [Tegernseer Gebräuche] as amended), the following General Delivery and Payment Terms and
Conditions will apply to all contracts, deliveries and other services which arise over the course of business
with companies within the meaning of Section 14 German Civil Code (BGB), legal persons under public
law, or special funds under public law. Our Terms and Conditions will also apply for consultation services
which are not the subject of an independent consultation contract. If these are not known, the text of the
Tegernsee Practices can be sent over upon request.
2. Our Terms and Conditions apply exclusively. Any deviating, contradictory or supplementary general terms
and conditions of the buyer will only become part of the contract if elka-Holzwerke GmbH expressly consents to their application. This consent requirement will apply in all cases, for example, even if elka-Holzwerke GmbH unreservedly provides the service to the buyer despite knowledge of their general terms and
conditions.
3. As part of an ongoing business relationship between merchants, these Terms and Conditions will also become part of the contract even if elka-Holzwerke GmbH has not informed the other party of their inclusion
in individual cases.
4 Agreements concluded with the buyer in individual cases (including ancillary agreements, supplements,
and amendments) will in any case take precedence over these Terms and Conditions. Subject to evidence
to the contrary, a written contract or written order confirmation (text form is sufficient) as well as the
description of services from elka-Holzwerke GmbH will be decisive in determining the content of such
agreements.
5. The buyer must impose the same conditions upon their customers as those that are imposed upon it by
elka-Holzwerke GmbH. There may be no deviations which come at the expense of elka-Holzwerke GmbH.
Section 2 Offers – conclusion of contract – prices – price adjustment clause
1. Offers from elka-Holzwerke GmbH are non-binding and will remain subject to the cancellation provisio until
the contract is concluded. All goods are subject to prior sale. In deviation from this, elka-Holzwerke GmbH
can bind itself to an offer for a period of time explicitly specified therein. In this case, the offer can only
be accepted during this period of time. Should an offer be accepted after the binding period, this will be
viewed as a request to conclude a new contract. In this case, elka-Holzwerke GmbH will create a new offer.
2. Unless otherwise agreed, the prices will be ex works or ex warehouse without packing and plus freight and VAT.
3. The purchase prices for raw materials, in particular wood, are subject to significant deviations in price.
elka-Holzwerke GmbH will be entitled adjust the prices to be paid by the buyer on the basis of the contract
to correspond with the cost development at its reasonable discretion, which will then become decisive for
calculating the price. Should costs for raw materials or wage expenses increase, elka-Holzwerke GmbH
will be entitled to increase the prices (price adjustment) in the event of changes in economic conditions
following the conclusion of the contract. elka-Holzwerke GmbH may only charge increases if prices have
not fallen in other areas. This will only apply if the services are scheduled to be carried out more than four
weeks following the conclusion of the contract.
Section 3 Delivery and transfer of risk
Unless otherwise agreed (e.g., delivery in accordance with Incoterms 2020), the following will apply:
1. Delivery periods and deadlines will be non-binding unless otherwise specified. Regardless of this, delivery
periods and deadlines stated to merchants will be subject to the reservation that elka-Holzwerke GmbH is
itself supplied in a timely manner, unless elka-Holzwerke GmbH would have been able to comply with the
promised periods in spite of this. Failure to comply will entitle the buyer to assert their warranty rights if
they have granted elka-Holzwerke GmbH a reasonable grace period.
2. Delivery and performance periods will be extended by the period for which the delivery or service is delayed
due to force majeure, labour disputes, or orders from official bodies. In cases of force majeure, in particular
such as damage due to fire, flooding, strikes, lawful lockouts and outbreaks of disease (including epidemics
and pandemics), the affected contractual party will be released from their obligation to deliver or accept for
the duration of the effects and to the extent that they are affected thereby. The parties will communicate
both the commencement and the expected cessation of this impediment to the respective other contractual
partner. Both parties will be entitled to withdraw from the contract if executing it is unreasonable due to
either the delay itself or the consequences thereof. Both parties will undertake to notify the respective
contractual partner at their request if they are withdrawing from the contract within a reasonable period
while also providing the reasons.
3. elka-Holzwerke GmbH will only be liable for delays to deliveries or services for which they and their vicarious agents are responsible, not, however, for their upstream suppliers. Upon request, they will, however,
be obligated to assign any claims held against upstream suppliers arising from the delay to the buyer, with
these not including damages which go beyond those incurred by the buyer or their customers.
4. Partial deliveries will be permitted to a reasonable extent and must be accepted by the buyer or their
customers.
5. Transport insurance policies will only be concluded at the express request of the buyer and at their expense.
6. Should deliveries be carried out using special packaging or via a special delivery method at the buyer‘s
request, any costs arising therefrom will be invoiced separately. Packing material will only be taken back
after prior agreement.
7. Even for carriage-free delivery, the risk will transfer to the buyer once the delivery has been dispatched or
collected. elka-Holzwerke GmbH will dispatch shipments using its best judgement. Delivery free building
site or warehouse means delivery without unloading and under the condition that an access road exists
which can be used by vehicles with heavy loads. Waiting times will be invoiced separately. Should the
vehicle leave the access road on the instruction of the buyer or their customer, the buyer will be liable for
any defects or damages which arise.
Section 4 Payment terms - exclusion of offsetting
1. An invoice will be created for each consignment on the dispatch date. This will also apply for partial deliveries. The invoice will only be sent in digital and electronic form.
2. Unless otherwise agreed, the purchase price will be payable in euros within 30 calendar days after the
invoice date in full, or after 14 days with a 2% discount insofar as there are no invoice amounts due on
the buyer‘s account. Only the value of the goods without freight, wage labour and packing will be eligible
for the discount. All costs for transferring the payable amount to the seller will be borne by the buyer. We
accept transfers and SEPA direct debit authorisation as means of payment. All amounts are to be paid in
euros.
3. Representatives will only be entitled to receive payments based on special power of attorney.
4. In the event of default of payment, elka-Holzwerke GmbH will be entitled to make all outstanding invoice
amounts due as well as cancel existing orders.
5. In the event of justified complaints for defects, the buyer will only withhold those payments which bear a
reasonable relationship to the material defects discovered unless the buyer is not obligated accept a partial
delivery consisting of the material free from defects in accordance with Section 3 clause 4.
6. Both parties will only be permitted to against counterclaims if these claims are either undisputed or have
been established as legally effective.
Section 5 Condition – warranty – statute of limitation
1. Wood is a natural product. Its natural properties, differences and features must thus be taken into account
at all times. The biological, physical, and chemical properties in particular must be taken into account
when purchasing, processing and using it. The range of natural differences in colour, structure and other
areas within a type of wood are included among the properties of wood as a natural product and will not
constitute grounds for either complaints nor liability.

2. As for the quality of the goods, only the service description and information in the written offer will be
considered as agreed upon. Public statements, promotions or advertisements of the manufacturer will not
constitute an additional contractual description of the goods‘ quality.
3. An agreed wood moisture level will be considered as an approximate target moisture level, taking into
account common tolerances. If the wood is dried using technical means, the agreed wood moisture level
will refer to the level at the point at which the wood leaves the drying kiln.
4. In the event of justified complaints for defects, elka-Holzwerke GmbH can either repair the issue or deliver a
replacement. Over- and/or underdeliveries of up to 10% of the goods ordered will not constitute a material
defect.
5. Warranty claims will lapse 12 months following the transfer of risk. This will not apply if the law provides
for longer periods in accordance with Section 438 paragraph 1, no 2 (buildings and materials for buildings)
Section 478 paragraph 1 (right of recourse) and Section 634 a) paragraph 1, no 2 (structural defects) BGB.
6. Section 6 will apply to claims for damages.
7. Immediately following delivery, the buyer must carry out an inspection and, if defects are discovered,
inform elka-Holzwerke GmbH immediately, Section 377 German Commercial Code (HGB). The notification
of defects must be sent to elka-Holzwerke GmbH in writing (text form) within 5 workdays. Should the
buyer fail to send the notification, the goods will be considered as approved unless it was not possible to
recognise the defect during the inspection. Should such a defect be discovered later, the notification must
be sent immediately (5 workdays; text form is sufficient) following discovery; the goods will otherwise be
considered as approved in spite of the defect. Sending the notification in a timely manner will be sufficient
to safeguard the rights of the buyer.
8. Return transport for justifiably rejected goods must be carried out by elka-Holzwerke GmbH‘s transport
vehicles. Should the customer choose to have the goods returned via another means of transport, they will
bear any costs and transport risk.
9. Should assured properties be missing, elka-Holzwerke GmbH will be liable insofar as the assurance serves
to protect the buyer against any damage which arises from the absence of the properties. Assured properties of the goods will not be determined purely by referencing DIN or EN norms.
10. The buyer must impose the same conditions upon their customers as those that are imposed upon it by
elka-Holzwerke GmbH. There may be no deviations which come at the expense of elka-Holzwerke GmbH.
Section 6 Limitation of liability – compensation
1. Claims for replacements and damage of any kind, including damage which is not caused to the goods, will
only exist:
- if elka-Holzwerke GmbH wilfully violates its obligations;
- if elka-Holzwerke GmbH violates its obligations due to gross negligence or in the event that a legal representative or vicarious agent violates their obligations in either a wilful or grossly negligent manner;
- in the event of damage to life, limb or health due to elka-Holzwerke GmbH violating its obligations owing to
gross negligence or our legal representative or vicarious agent violating their obligations in either a wilful
or grossly negligent manner;
- in the event of a culpable violation of essential contractual obligations, insofar as this jeopardises the
purpose of the contract with regard to damage which is typical and foreseeable for this type of contract;
- in cases of liability due to defects on goods, personal injuries or material damage to privately used objects
under the German Product Liability Act (ProdHaftG);
- in the event of defects which have been fraudulently concealed or whose absence we have guaranteed.
2. In the event of material and property damage arising from slight negligence, elka-Holzwerke GmbH and
its vicarious agents will only be liable if an essential contractual obligation is violated, however with the
amount being limited to damages which are typical for this type of contract and which were foreseeable
upon the contract‘s conclusion; essential contractual provisions are those which characterise the contract‘s fulfilment and upon which the customer may rely.
3. In general, claims for damages which go beyond these are excluded.
Section 7 Retention of ownership
1. All delivered items (reserved goods) will remain the property of elka-Holzwerke GmbH until the purchase
price has been paid in full. For merchants, this will apply until all due claims arising from that specific
business relationship have been cleared. Should the value of the reserved goods exceed the total of all due
claims by at least 30%, elka-Holzwerke GmbH must release reserved goods to the buyer up to the excess
amount when requested to do so.
2. If the reserved goods are adapted or processed, elka-Holzwerke GmbH will receive joint ownership over the
new item in proportion to the reserved goods‘ invoice value compared to the other processed goods at the
time of the processing. Any new items which arise from the adaption or processing will, in turn, constitute
reserved goods within this meaning.
3. Should the delivered goods be connected with the movable item of a third party in such a way that it constitutes an essential part of the other item which is to be seen as the primary item, the customer will at this
point assign elka-Holzwerke GmbH the arisen claim for remuneration held against the third party, with its
value totalling that of the reserved goods. elka-Holzwerke GmbH hereby accepts this advance assignment.
elka-Holzwerke GmbH will only be permitted to disclose the assignment to third parties if the customer is
in default of payment vis-à-vis elka-Holzwerke GmbH.
4. In the event of seizures, confiscations or other orders or interventions from third parties, the customer must
inform elka-Holzwerke GmbH of this without delay in full. Should the customer be in default of payment,
elka-Holzwerke GmbH will be entitled to unilaterally announce the termination of the buyer’s ownership
right without a grace period and demand the return of any material which has not been processed. Upon
cessation of payment and/or over-indebtedness, the debtor’s right to use the reserved goods will disappear
unless the recipient of the buyer’s service provides elka-Holzwerke GmbH with written confirmation that
they will observe the advance assignment in accordance with clause 3.
5. Should the customer be in default of payment for more than a month, the customer will be obligated to
grant elka-Holzwerke GmbH or its agents any possible access to the reserved goods without delay so that
their quantity, recoverability and availability can be determined. Other rights remain unaffected.
Section 8 Data protection
elka-Holzwerke GmbH processes both the corporate and personal data of the buyer in accordance with the
General Data Protection Regulation (GDPR) and the German Federal Data Protection Act (BDSG). The buyer
can obtain the most up-to-date information in further detail at https://www.elka-holzwerke.de/Impressum/
datensicherheit.html
Section 9 Place of performance – place of jurisdiction – applicable law
1. Morbach/Hunsrück, Germany will be the place of performance. 54470 Bernkastel-Kues, Germany will be
the place of jurisdiction.
2. The law of the Federal Republic of Germany will apply, to the exception of the UN Convention on the International Sale of Goods
Section 10 Severability clause
Should a clause violate a statutory ban or be or become legally ineffective for another reason, the validity of
the remaining provisions will remain unaffected. The parties agree to replace the invalid provision with another
which corresponds to the economic interests and presumed wishes of the contractual parties, taking into
account the remaining contractual provisions, as closely as possible. The same will apply for a contractual gap.
At the request of the respective contractual partner, both contractual parties will undertake to make a serious
contribution to formulating a replacement provision in these cases.

Sawn timber and wood-based materials
in perfection - since 1906

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Sawn timber and wood-based materials
in perfection - since 1906

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The elka branded products

The elka branded products

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© 2022 · elka-Holzwerke GmbH · D-54497 Morbach

© 2022 · elka-Holzwerke GmbH · D-54497 Morbach

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