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EUROLUB GmbH’s Terms and Conditions (T&C)
a) These terms and conditions (in the following: T&C) shall apply to all agreements and offers between us – EUROLUB GmbH – and our clients. Amendments as well as differing terms and conditions by client shall only be applicable if we explicitly agree to them; the same shall apply to the exclusion of these T&C.
b) These T&C shall also apply for future deliveries, services and offers, even if not agreed upon again separately.
c) These T&C shall only be applicable towards customers that are entrepreneurs in the sense of § 14 BGB (German Civil Code), a legal entity under public law or special fund under public law (§ 310 BGB).
d) Even if provided in English language, the German version of these T&C shall govern.
2. Offer, Conclusion of Contract
a) Our offers are subject to change unless otherwise stated in the offer.
b) The order made by customer is a binding offer subject to acceptance by us within 14 days upon date of ordering. The execution of performance within the term of acceptance shall constitute acceptance.
c) The illustrations, descriptions, drawings, brochures or similar documents attached to our offers or that serve as basis for our offers are merely a non-binding information that does not become terms of contract unless explicitly agreed so in writing.
3. Pricing, Terms of Payment
a) Our prices are determined based on the pricelists valid the day of conclusion of contract unless certain prices have been agreed explicitly.
b) Any and all specified prices are net-prices to which value added tax in the statutory amount as well as transportation costs have to be added.
c) In case of contracts with an agreed delivery time of more than 4 months we reserve the right to increase or reduce agreed prices according to price changes taken place, especially regarding costs for material, wages and any other additional costs. Should the increase exceed 5% of the previously agreed price, the customer shall have the right to rescind from contract (termination or withdrawal).
d) Unless otherwise stated in our order confirmation, an agreement or our bill, prices are due for payment immediately without any deduction.
e) We are entitled to execute or render still due deliveries or services only upon payment in advance (prepayment) or security deposit if customer is seated abroad or if after conclusion of the contract we come to know of circumstances that significantly lessen the customer’s creditworthiness and which lead to an endangerment of the payment of our open claims by customer.
The delivery will be packed in the standard commercial manner. Containers of more than 200 liters are refundable containers. These refundable containers have to be returned free of carriage and costs by customer immediately after reception of delivery and have to be in perfect conditions. They must not be filled with other goods or used otherwise.
5. Delivery, Time and Terms of Delivery, Partial Delivery, Passing of Risk, Default of Acceptance
a) Delivery times or terms specified by us are not binding unless a certain delivery time or term has explicitly been indicated as binding or has explicitly been agreed as binding. The start of this delivery time or term requires the clarification of any and all technical questions and the timely and correct fulfillment of duties, especially any and all customer’s duties to cooperate.
b) We have the right to provide the contractual performance in in partial deliveries as long as this is reasonable for customer.
c) If the delivery is agreed to be on call, customer has to call up within reasonable term.
d) If delivery becomes impossible or unreasonably hindered due to force majeure, official measures, closure of company, strike or similar circumstances, - also with our suppliers – we shall be freed from our obligation to perform for the time of interference and its aftereffects. Should the resulting delays exceed the period of 6 weeks, both parties shall have the right to rescind from the affected scope of delivery. In case of non-delivery or insufficient delivery by our suppliers we shall be released completely or in part from our obligation to deliver. This shall only apply if we have taken any and all necessary measures to purchase the goods to be delivered by us. In such event we commit to cede our claims against the supplier to customer on his request. No further entitlements shall exist.
e) The delivery and the passing of risk takes place according to Incoterms 2010 „ex work“ EXW EUROLUB GmbH, Eching, unless otherwise agreed in the contract. If desired by customer and at his expenses we ship the goods, without prejudice of passing of risk, loss or damaging according to „ex works“ EXW Eurolub GmbH, Eching, Incoterms 2010 to a ship-to location named by customer. Mode of shipment, way of shipment and carrier will be chosen by us.
f) Should customer be in default of acceptance or should he culpably infringe any other duty to cooperate, we shall be entitled to claim the damages incurred to us including possible additional costs (especially storage costs). The right to further claims remains reserved. Furthermore, the risk of accidental loss or deterioration of good to be delivered by way of derogation of e) passes on to customer the moment where customer falls into default of acceptance.
g) We only provide transfer insurances if customer explicitly aks for it. Customer has to bear all costs.
6. Liability, Warranty
a) Warranty period is one year after delivery, unless on a case-to-case basis a longer warranty period has been agreed between the parties.
b) The customer’s warranty claims require that customer met his inspection- and reproof obligations according to § 377 HGB (Commercial Code), albeit we assume that reproofs have to be made within 7 working days after delivery.
c) In case of defects of delivered goods we have the right and duty, in the first instance, to repair or redeliver, to be chosen by us within reasonable period of time. In case of failure, i.e. impossibility, unreasonableness, refusal or unreasonable delay of repair or redelivery, customer can rescind from contract or reduce the agreed price reasonably.
d) Should the defect be based on our own fault, customer can claim damages according to certain conditions described in no. 7.
e) In case of defects of any part of the product or components provided by other manufacturers that we cannot repair due to licensing rights or factual grounds we will, at our own choice, enforce our warranty claims against the manufacturer and supplier on the account of customer, or cede them to customer. Such warranty claims due to defect against us shall only exist if any and all other conditions have been fulfilled and according to these T&C only if the legal enforcement of the aforementioned claims against the manufacturer and supplier has been in vain, e.g. due to insolvency. For the duration of the law suit the statue of limitation for the respective customer’s warranty claims towards us is suspended.
f) The warranty shall be inapplicable, if customer modifies the delivered item himself or has it modified by thirds without our permission and if this modification makes the repair of the defect impossible or unreasonable to perform. In either case customer shall pay the additional costs of repair of defect arising due to modification of item.
g) Warranty claims shall be excluded:
In case of deterioration of such items that are subject to natural wear and tear, unless the deterioration is due to any other reason than wear and tear;
- If operating and maintenance instructions are not being followed, or
- If repair of or intervention with the item is performed by persons that do not have the necessary technical qualification to do so.
h) If in individual cases the delivery of used items has been agreed, this shall take place under exclusion of any and all warranty.
7. Liability for Default Damages
a) Our liability for damages, irrespective of the legal reason, especially due to impossibility, delay, defective or wrong delivery, infringement of contract, infringement of duties during contract negotiation and tort, if it is a matter of fault, is limited according to this no. 7.
b) We are not liable for:
- Cases of slight negligence by our executive bodies, legal representatives, employees or vicarious agents;
- Cases of gross negligence by our non-executive employees and other vicarious agents,
as long as it is not a matter of breach of material contractual duties. Material contractual duties comprise the duty to promptly deliver free of defects as well as duties to provide advice, protective duties and duty of care that are intended to enable the customer to use the delivered item as provided in the contract or to protect the body or life of customer’s or third party’s personnel or customer’s property from severe damage.
c) Insofar as we are liable for damages on the merits according to b) our liability is limited to damages that at the time of conclusion of contract were foreseeable as possible consequences of a contractual breach or that we knew or should have known of, taking into account the circumstances and by applying due care and attention. Furthermore, incidental and indirect damages that result from defects in the delivered item are only eligible for compensation to the extent that such defects could typically be expected when using the delivered item as intended.
d) In case of liability for slight negligence our obligation to pay damages or compensation for loss of property or personal injury is limited to the actual amount insured in our liability insurance. This shall also apply for cases of breach of material contractual duties.
e) The aforementioned disclaimer and limitations of liability shall apply to the same extent for our executive bodies, legal representatives, employees and any other vicarious agents.
f) As far as we provide technical information or advice and if this information or advice is not part of the contractually agreed scope of services rendered, this will occur free of charge and under exclusion of any and all liability.
g) The limitations of this no. 7 shall not apply for our liability due to intentional behavior, for guaranteed features, for injury of life, the body or health or according to the Product Liability Act (Produkthaftungsgesetz).
8. Reservation of Proprietary Rights
a) We reserve the proprietary rights of the goods and items to be delivered until all payments according to the delivery agreement have been received (goods subject to reservation of proprietary rights). If customer breaches the contract, especially in case of delayed payment, we have the right to take the goods subject to reservation of proprietary rights back. If we take back these goods, this does not imply a rescission from contract, unless we have explicitly declared so in writing. If we distrain the goods this will always imply a rescission from contract. If after taking back the goods subject to reservation of proprietary rights we are entitled to exploit these goods, the exploitation proceeds minus reasonable exploitation costs will be credited against the customer’s depts.
b) The customer shall treat the goods subject to reservation of proprietary rights with care; he especially shall insure them against fire and water damage and theft, with the insured sum being adequate to cover the replacement value.
c) In case of distraint or any other third party intervention customer has to inform us in writing immediately so that we can bring an action according to § 771 ZPO (Civil Proceeding Code). Should the third party no be able to reimburse the judicial and extra-judicial costs occurred due to the action according to § 771 ZPO, customer will be liable for our losses incurred.
d) The customer has the right to resell the goods subject to reservation of proprietary rights within the proper course of business; but already at the time being he cedes to us any and all claims in the amount of the final invoice value including the value added tax of our claim, accruing to him from the resale against his customers or third parties; this shall be irrespective of the fact that the goods subject to reservation of proprietary rights have been further resold after or without processing. Even after this cession customer remains authorized to collect this amount receivable. Our authorization to collect the amount receivable ourselves remains unaffected. Nevertheless, we commit to not collect the amount receivable as long as customer complies with his duty of payment arising from proceeds collected, does not become overdue with his payments and, especially, no application for the opening of insolvency proceedings or any similar proceeding is made or any payment is suspended. But should this become the case we shall have the right to ask the customer to inform us about the ceded amounts receivable and the respective debtor, any and all details necessary for the collection, to hand over the corresponding documents and to inform debtors (third parties) about the cession.
e) The processing or modification of the goods subject to reservation of proprietary rights by the customer will always be carried out on our behalf. Should these goods be processed with items that do not belong to us, we obtain the co-ownership of the new item in the amount of the value of the bought item (end value of invoice including value added tax) in the proportion to the other processed items at the time of processing. For the item resulting from the processing the same shall apply as for the goods subject to the reservation of proprietary rights.
f) Should the goods subject to the reservation of proprietary rights be mixed inseparably with items not belonging to us, we obtain the co-ownership of the new item in the proportion of the value of the goods subject the reservation of proprietary rights (end value of the invoice including value added tax) to the other mixed items at the time of mixing. Should the mixing take place in a way that the customer’s items are to be seen as main item, it shall be agreed that customer proportionally cedes us co-ownership. Customer will keep safe the resulting sole ownership or co-ownership for us.
g) We commit to, upon customer’s request, return securities that we are entitled to insofar as the recoverable amount of our securities exceed the amount receivable by more than 10%; the choice of which securities to returns is ours.
9. Trademark Rights
Customer has to respect the trademark rights concerning the purchased goods, especially copyright, trademark rights, design patents and patent rights whether or not it is us or our suppliers or manufacturer who can claim these rights. Our products are our intellectual property. The customer does not have the right to reverse engineer the products, to secure any trademark rights or to exploit them in any other way.
10. Place of Performance, Place of Jurisdiction, Applicable Law
a) Place of performance for both sides is our place of business in Eching. Exclusive place of jurisdiction for all disputes arising from contract is Eching as well, if customer is merchant.
b) The contracts concluded between us and customer are subject to the law of the Federal Republic of Germany under exclusion of the UN Convention of sale of goods (UN Sales Convention).
- Status: September 2012 -