Eurodor GmbH General Terms and Conditions of Business
§ 1 Scope
(1) The General Terms and Conditions of Business apply exclusively and only with respect to companies, legal persons under public law or special funds under public law within the meaning of § 310 (1) German Civil Code. Conditions of the purchaser which conflict or deviate from Eurodor's General Terms and Conditions of Business shall be recognised by Eurodor only on written agreement.
(2) These General Terms and Conditions of Business also apply to all future transaction with the purchaser, insofar as the legal transactions are of a related nature.
§ 2 Quotation and conclusion of contract
Eurodor's quotations are always subject to confirmation. Quotations, orders and collateral agreements do not become binding until they have been confirmed in writing by Eurodor. Information on quality, applications or colour, together with illustrations or other information in catalogues, prospectuses, price lists or similar are understood only as approximate values and in particular represent no warranty for features, unless they are designated in writing as binding. Provided that an order can be regarded as an offer pursuant to § 145 German Civil Code, Eurodor is entitled to accept this within two weeks.
§ 3 Data provided
Eurodor reserves the title and copyright in all data provided in relation to the award of contract to the purchaser, such as calculations, etc. Third parties must not be allowed access to these data, unless the purchaser has been granted express consent. If Eurodor does not accept the purchaser's offer within the period provided in § 2, these data must be returned without delay.
§ 4 Prices and payment
(1) Unless otherwise agreed in writing, Eurodor's prices are valid ex works, exclusive of packaging and exclusive of value added tax at the rate in force at any given time. Packaging costs are invoiced separately.
(2) The purchase price must be paid solely into the account specified. Deduction of discount is admissible only on separate written agreement.
(3) Unless otherwise agreed, the purchase price is payable within 10 days of delivery. Interest on arrears in the amount of 8% above the respective base rate shall be charged. The assertion of greater loss caused by default remains reserved.
(4) Provided that no fixed price agreement has been concluded, reasonable price changes by reason of changes in wage, material and distribution costs, which occur three months or later subsequent to conclusion of the contract, remain reserved.
(5) Advance payments made by the purchaser or securities may be charged by Eurodor on accounts payable due.
§ 5 Offset/default of acceptance and rights of retention
(1) The purchaser is entitled to offset, only if its counter-claims are recognised by declaratory judgement (res judicata) or undisputed. In exercising a right of retention the participant is entitled only to the extent that its counter-claim relies on the same contractual relationship.
(2) If the purchaser is in default of acceptance and refuses acceptance of the goods ordered on the expiry of a four week's period of grace with warning or expressly declares in advance that it does not wish to accept, Eurodor is entitled to invoice the costs hitherto incurred by the purchaser.
(3) In the case of default of acceptance the purchaser must pay the warehousing costs incurred; these costs amount to a flat-rate of 2% of the purchase price per month. It is open to the purchaser to prove that warehousing costs have not been incurred or that they must be estimated at a figure substantially lower than the flat-rate figure. In the case of default of acceptance with respect to part-consignments the warehousing costs to be paid amount to a percentage of the order amount for the goods, which have not been accepted.
§ 6 Delivery period
(1) The start of the delivery period specified by Eurodor requires timely fulfilment in proper form of the purchaser's duties. The plea of failure to perform the unfulfilled contract remains reserved. Delivery periods are extended by a minimum of the specified delivery period, if samplings are not accepted by the purchaser.
(2) If the purchaser enters into default of acceptance or if it culpably breaches other obligations to cooperate, Eurodor is entitled to require that loss incurred in this respect, including any additional expenditure, is made good. Further claims remain unaffected. If the foregoing prerequisites exist, the risk of accidental destruction or accidental deterioration of the purchased item passes to the purchaser at the point in time, at which the latter became in default of acceptance or entered into debtor's delay.
(3) Further legal claims and rights of the purchaser by reason of delayed delivery are not taken into account.
§ 7 Passing of the risk on shipping
If at the request of the purchaser the goods are shipped to the latter, the risk of accidental destruction or accidental deterioration of the goods passes to the purchaser at the latest when the goods leave the works or warehouse. This applies irrespective of whether the goods are shipped from the place of performance or of which party bears the shipping costs.
§ 8 Retention of title
(1) Eurodor retains title in the delivered item until payment in full of all claims arising from the supply contract. This also applies to all future deliveries, even if Eurodor does not always expressly rely thereon. Eurodor is entitled to retract the purchased item, if the purchaser behaves contrary to the contract.
(2) Until title has passed to it, the Purchaser is obliged to handle the purchased item with care. In particular it is obliged to provide adequate insurance cover for the delivery item at its costs against fire and water damage at the new value. Until title has passed to it, the purchaser must notify Eurodor without delay in writing, if the delivered object is distrained or exposed to other interventions by third parties. Insofar as the third party is not able to reimburse to Eurodor the judicial and extra-judicial costs of an action pursuant to § 771 German Code of Civil Procedure, the customer shall be liable for the financial loss incurred by us.
(3) The purchaser shall be entitled to resell the goods subject to the retention of title in the normal course of business. The purchaser shall as of the present date assign to Eurodor the claims of the buyer arising from the resale of the goods subject to the retention of title in the amount of the final invoiced amount agreed with Eurodor (including value added tax). This assignment shall apply irrespective of whether the purchased item has been resold without processing or subsequent to processing. The purchaser remains entitled to collect the debt even subsequent to assignment. Eurodor's capacity to collect the debt itself remains unaffected thereby. However, Eurodor shall not collect the debt, while the purchaser complies with its payment obligations arising from the revenue collected, is not in default of payment and in particular no application for the opening of insolvency or bankruptcy proceedings has been lodged.
(4) The working and processing or alteration of the purchased item by the purchaser is always undertaken in the name and on behalf of Eurodor. In this case the purchaser's reversionary interest in the purchased item continues. If the purchased item is processed with other objects, which are not the property of Eurodor, Eurodor shall acquire the joint title in the new item at the objective value of the purchased item in relation to the other processed objects at the time of the processing. The same shall apply in the case of mixing. If the goods are mixed, such that the purchaser's item is regarded as the main item, it is deemed to have been agreed that the purchaser assigns pro rata joint ownership to Eurodor and keeps safe for Eurodor the sole ownership or joint ownership. To secure Eurodor's claims against the purchaser, the purchaser shall also assign to Eurodor those claims, which have accrued to it against a third party by the combination of the goods subject to the retention of title in property. Eurodor accepts this assignment as of the present date.
(5) Eurodor undertakes, on the request of the purchaser, to release the securities, to which Eurodor has a right, insofar as their value exceeds the value of the debts to be secured by more than 20%.
§ 9 Warranty and notices of defects, plus recourse action/recourse against manufacturer
(1) Eurodor warrants that the object of purchase is free from defects on hand-over.
(2) If the object of purchase is defective on hand-over, the purchaser has the right to require supplementary performance, at its discretion by remedying of the defect or by the delivery of a defect-free object of purchase. If the supplementary performance fails, the purchaser has the right to reduce the purchase price or to withdraw from the contract. Eurodor retains the right to refuse the nature of supplementary performance selected by the purchaser, if it is impossible or is possible only at disproportionate costs. In this case the purchaser's claim is reduced to the other type of supplementary performance; the right also to refuse this under the prerequisites in the third sentence remains unaffected.
(3) If the purchase is a trading operation for both parties, the purchaser must inspect the object of purchase without delay on delivery, insofar as this is feasible in accordance with correct business practice. If a defect becomes apparent, it must notify this to Eurodor without delay. If the purchaser fails to notify Eurodor, the object of purchase shall be deemed to have been accepted, unless the defect is such that it could not be detected during the inspection. If such a defect subsequently becomes apparent, this must be notified without delay on discovery of the defect; otherwise the object of purchase is deemed to have been accepted even on the basis of this defect. These provisions do not apply, if the defect has been fraudulently concealed. The timely despatch of the notice is sufficient for the retention of the purchaser's rights.
(4) If, for the purpose of the non-fulfilment, Eurodor delivers an object of purchase free from defects, Eurodor may require that the defective object of purchase is returned.
§ 10 – Limitation of liability
For loss other than for injury to life, limb and health, Eurodor accepts liability only if these losses rely on culpable intent or gross negligence or on the culpable breach by Eurodor or its vicarious agents of a material contractual duty. A material contractual duty is a duty, the compliance with which is essential for the proper performance of the contract and on compliance with which the purchaser may routinely rely. More extensive liability for compensation in damages is excluded. Claims arising from a warranty issued by Eurodor for the properties and condition of the object of purchase and under the Product Liability Act remain unaffected thereby.
§ 11 Data protection
The customer's personal data are collected only in compliance with the statutory provisions. Third parties shall be allowed access to the data only to the extent necessary for the processing of the contract.
§ 12 Court of jurisdiction
(1) This contract and the entire legal relationship between the parties are subject to the law of the Federal Republic of Germany to the exclusion of the United Nations Convention on Contracts for the Sale of Goods (CISG).
(2) unless otherwise stated on the order confirmation our registered office is the place of performance and sole Court of jurisdiction for all disputes arising from this contract.
§ 13 Other matters
Amendments and additions to this contract require the written form. This applies also to any amendment of this written form clause. No oral collateral agreements have been made.
§ 14 Severability clause
In the event that individual provisions of this agreement are invalid or infeasible or become invalid or infeasible subsequent to the conclusion of the contract, the validity of the remaining provisions of the agreement shall remain unaffected. The invalid or infeasible provision shall be replaced by a valid and feasible provision, the effect of which comes closest in law to the commercial objective, which the parties to the contract were seeking with the invalid or infeasible provision. The foregoing provisions apply also to the case, in which it becomes apparent that the contract contains omissions.