General Terms and Conditions of NiTO Holzstein GmbH

Scope
1.1 These General Terms and Conditions (hereinafter “T&Cs”) apply to all contracts concluded between NiTO Holzstein GmbH (hereinafter “NiTO”, “we” or “us”) and our customers (hereinafter “Customer” or “you”).
1.2 These T&Cs apply exclusively. Deviating, conflicting or supplementary General Terms and Conditions of the Customer shall only become part of the contract if and to the extent that we have expressly agreed to their validity in writing.
1.3 Individual agreements made with the Customer in individual cases (including collateral agreements, supplements and amendments) shall in any case take precedence over these T&Cs. Subject to proof to the contrary, a written contract or our written confirmation shall be authoritative for the content of such agreements.
Conclusion of Contract
2.1 Our offers are subject to change and non-binding unless they are expressly marked as binding or contain a specific acceptance period.
2.2 The order of the goods by the Customer shall be deemed to be a binding offer of contract. Unless otherwise stated in the order, we are entitled to accept this contractual offer within two weeks of its receipt by us.
2.3 Acceptance can be declared either in writing (e.g. by order confirmation) or by delivery of the goods to the Customer.
Delivery Period and Delay in Delivery
3.1 The delivery period shall be agreed individually or stated by us upon acceptance of the order.
3.2 If we are unable to meet binding delivery deadlines for reasons for which we are not responsible (non-availability of the service), we will inform the Customer of this immediately and at the same time notify the expected new delivery deadline. If the service is also not available within the new delivery period, we are entitled to withdraw from the contract in whole or in part; we will immediately refund any consideration already provided by the Customer.
3.3 The occurrence of our delay in delivery shall be determined in accordance with the statutory provisions. In any case, however, a reminder by the Customer is required.
Delivery, Transfer of Risk, Acceptance, Default of Acceptance
4.1 Delivery shall be made ex warehouse, which is also the place of performance for the delivery and any subsequent performance. At the Customer’s request and expense, the goods will be shipped to another destination (sale by delivery to a place other than the place of performance).
4.2 The risk of accidental loss and accidental deterioration of the goods shall pass to the Customer at the latest upon handover. In the case of sale by delivery to a place other than the place of performance, 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 any other person or institution designated to carry out the shipment.
4.3 If the Customer is in default of acceptance, fails to cooperate or if our delivery is delayed for other reasons for which the Customer is responsible, we shall be entitled to demand compensation for the resulting damage including additional expenses (e.g. storage costs).
Prices and Terms of Payment
5.1 Unless otherwise agreed in individual cases, our current prices at the time of conclusion of the contract shall apply, ex warehouse, plus statutory value added tax.
5.2 In the case of sale by delivery to a place other than the place of performance, the Customer shall bear the transport costs ex warehouse and the costs of any transport insurance requested by the Customer.
5.3 The purchase price is due and payable within 14 days of invoicing and delivery or acceptance of the goods. However, we are entitled, even in the context of an ongoing business relationship, to carry out a delivery in whole or in part only against advance payment at any time.
5.4 The Customer shall be in default upon expiry of the above payment deadline. During the period of default, interest shall be charged on the purchase price at the statutory default interest rate applicable at the time. We reserve the right to assert further damage caused by default.
Retention of Title
6.1 We retain title to the goods sold until full payment of all our present and future claims arising from the purchase contract and an ongoing business relationship (secured claims).
6.2 The goods subject to retention of title may neither be pledged to third parties nor assigned as security before full payment of the secured claims. The Customer must inform us immediately in writing if an application is made to open insolvency proceedings or if third parties (e.g. seizures) have access to the goods belonging to us.
6.3 In the event of breach of contract by the Customer, in particular non-payment of the due purchase price, we shall be entitled to withdraw from the contract in accordance with the statutory provisions and/or demand return of the goods on the basis of the retention of title and withdrawal.
Customer’s Claims for Defects
7.1 The Customer’s rights in the event of material defects and defects of title shall be governed by the statutory provisions, unless otherwise stipulated below.
7.2 The basis of our liability for defects is above all the agreement reached on the quality of the goods. Our product descriptions designated as such, which were provided to the Customer before his order or were included in the contract in the same way as these T&Cs, shall be deemed to be an agreement on the quality of the goods.
7.3 The Customer’s claims for defects presuppose that he has complied with his statutory obligations to inspect and give notice of defects. If a defect becomes apparent during delivery, inspection or at any later time, we must be notified of this in writing without delay. In any case, obvious defects must be reported in writing within 5 working days of delivery and defects not detectable during inspection within the same period from discovery. If the Customer fails to carry out the proper inspection and/or notification of defects, our liability for the defect not reported or not reported in time or not reported properly is excluded in accordance with the statutory provisions.
7.4 If the delivered item is defective, we may initially choose whether to provide subsequent performance by remedying the defect (rectification) or by delivering a defect-free item (replacement delivery). Our right to refuse subsequent performance under the statutory conditions remains unaffected.
7.5 We are entitled to make the subsequent performance owed dependent on the Customer paying the purchase price due. However, the Customer is entitled to retain a reasonable part of the purchase price in relation to the defect.
7.6 The Customer must give us the time and opportunity required for the subsequent performance owed, in particular to hand over the goods complained about for inspection purposes. In the event of a replacement delivery, the Customer must return the defective item to us in accordance with the statutory provisions.
7.7 We shall bear the expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labor and material costs, if a defect is actually present. Otherwise, we can demand reimbursement from the Customer for the costs incurred from the unjustified request for rectification of defects, unless the lack of defectiveness was not recognizable to the Customer.
7.8 If the subsequent performance has failed or a reasonable deadline to be set by the Customer for the subsequent performance has expired unsuccessfully or is dispensable according to the statutory provisions, the Customer 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.
7.9 Claims of the Customer for damages or reimbursement of futile expenses shall also exist in the case of defects only in accordance with Clause 8 and are otherwise excluded.
Other Liability
8.1 Unless otherwise provided in these T&Cs including the following provisions, we shall be liable for breach of contractual and non-contractual obligations in accordance with the statutory provisions.
8.2 We shall be liable for damages – irrespective of the legal grounds – within the scope of fault-based liability in cases of intent and gross negligence. In the case of simple negligence, we shall be liable, subject to statutory limitations of liability (e.g. care in own affairs), only
a) for damages resulting from injury to life, body or health,
b) for damages resulting from the not insignificant breach of a material contractual obligation (obligation, the fulfillment of which enables the proper execution of the contract in the first place and on the observance of which the contractual partner regularly relies and may rely); in this case, however, our liability is limited to compensation for the foreseeable, typically occurring damage.
8.3 The limitations of liability resulting from para. 2 shall also apply to breaches of duty by or in favor of persons whose fault we are responsible for according to statutory provisions. They do 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 Customer under the Product Liability Act.
8.4 The Customer may only withdraw or terminate 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 Customer (in particular according to §§ 651, 649 BGB) is excluded. In all other respects, the statutory requirements and legal consequences shall apply.
Limitation Period
9.1 Notwithstanding § 438 para. 1 no. 3 BGB, the general limitation period for claims arising from material defects and defects of title shall be one year from delivery. Insofar as acceptance has been agreed, the limitation period shall commence upon acceptance.
9.2 However, if the goods are a building or an item that has been used for a building in accordance with its usual purpose and has caused its defectiveness (building material), the limitation period shall be 5 years from delivery in accordance with the statutory regulation (§ 438 para. 1 no. 2 BGB). Other statutory special regulations on the limitation period (in particular § 438 para. 1 no. 1, para. 3, §§ 444, 445b BGB) shall also remain unaffected.
9.3 The above limitation periods of the law on sales shall also apply to contractual and non-contractual claims for damages of the Customer based on a defect of the goods, unless the application of the regular statutory limitation period (§§ 195, 199 BGB) would lead to a shorter limitation period in individual cases. Claims for damages of the Customer pursuant to Clause 8.2 sentence 1 and sentence 2(a) as well as according to the Product Liability Act shall, however, become statute-barred exclusively according to the statutory limitation periods.
Choice of Law and Place of Jurisdiction
10.1 These T&Cs and the contractual relationship between us and the Customer shall be governed by the law of the Federal Republic of Germany to the exclusion of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods.
10.2 If the Customer is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive – also international – place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be our registered office in Schwanewede, Germany. The same shall apply if the Customer is an entrepreneur within the meaning of § 14 BGB. However, we shall also be entitled in all cases to bring an action at the place of performance of the delivery obligation in accordance with these T&Cs or a prior individual agreement or at the general place of jurisdiction of the Customer. Overriding statutory provisions, in particular regarding exclusive jurisdiction, shall remain unaffected.
Data Protection
11.1 We collect and process the Customer’s personal data to the extent necessary for the implementation and processing of the contractual relationship. For details on data processing, please refer to our separate privacy policy.
Severability Clause
12.1 Should individual provisions of this contract be or become invalid or unenforceable in whole or in part, this shall not affect the validity of the remaining provisions. The invalid or unenforceable provision shall be replaced by a valid and enforceable provision whose effects come as close as possible to the economic objective pursued by the contracting parties with the invalid or unenforceable provision. The above provisions shall apply mutatis mutandis in the event that the contract proves to be incomplete.
Amendments to the T&Cs
13.1 We are entitled to amend these T&Cs to the extent necessary to adapt to developments which were not foreseeable at the time of conclusion of the contract and which we have not caused or influenced and the non-consideration of which would significantly disturb the balance of the contractual relationship. Furthermore, amendments may be made to the extent necessary to eliminate difficulties in the execution of the contract due to regulatory gaps, in particular if a competent court declares one or more provisions of these T&Cs invalid.
13.2 The amended conditions will be communicated to the Customer in writing or by e-mail at least six weeks before they come into force. The amendments shall be deemed approved if the Customer does not object to them in writing or by e-mail within six weeks of receipt of the notification. We will specifically draw the Customer’s attention to this legal consequence in the notification.
Special Provisions for the NiTO Holzstein
14.1 The Customer undertakes to use the NiTO Holzstein exclusively in accordance with the processing guidelines and technical specifications provided by us. Any warranty claim shall expire in case of non-compliance with these specifications.
14.2 The Customer acknowledges that the NiTO Holzstein is an innovative product and its properties may differ from conventional building materials. The Customer undertakes to take this into account when planning and carrying out construction projects.
14.3 The Customer is solely responsible for the use of NiTO Holzstein in construction projects. The Customer must independently check whether the use of NiTO Holzstein is suitable and permissible for their specific construction project, particularly with regard to building regulations and structural requirements.
14.4 We reserve the right to change the composition, design or specifications of the NiTO Holzstein at any time, provided that this does not impair functionality or assured properties.
14.5 The Customer undertakes not to decompile, disassemble or otherwise attempt to determine the composition or manufacturing method of the NiTO Holzstein. Any form of reverse engineering is prohibited.
14.6 When reselling the NiTO Holzstein, the Customer undertakes to inform the end user about the specific properties and instructions for use.

Status: August 2024