1.) These terms and conditions form an integral part of any offers and contracts for the delivery of articles of merchandise of the vendor.
2.) It is agreed that German law shall be applicable exclusively.
3.) The terms and conditions of our contractual partners shall not form part of the contract.
4.) If any two letters of confirmation cross each other containing regulations to the contrary the letter of confirmation of the vendor shall be valid.
5.) Until the explicit sale confirmation any offers shall be without engagement.
6.) Delays in delivery caused by Acts of God and by events which are not in the sphere of influence of the vendor and which make the delivery significantly more difficult or infeasible - this includes industrial action, lockout administrative orders etc. - even if occurring with contractors or their subcontractors - shall entitle the vendor to prolong the delivery respectively the performance by the duration of the impediment plus any appropriate start-up time or by reason of the part of the contract which has not been performed yet to withdraw from the contract in part or in full. The impediment shall be notified by the vendor. If the delivery time is extended or the vendor is released from its responsibility therefore the purchaser shall have no claim for damages.
7.) If the impediment continues for more than three months the purchaser shall be entitled, after setting a reasonable further or final deadline, to withdraw from the contract with regard to the non-performed part of the contract.
8.) As far as the vendor is responsible for the non-compliance with the agreed time frames and time limits or is in delay the purchaser shall have a claim for damages in the amount of 0.5% for each complete week of delay, however, in the aggregate to a maximum of 5 % of the value as per invoice of the delivery and performance affected by the delay, whereas the vendor shall have the opportunity to prove a smaller and the purchaser shall have the opportunity to prove a higher damage. Additional claims shall be precluded save where at least the delay is based on gross negligence by the vendor.
9.) For the delivery of the vendor the place of shipment shall be the place of performance. Statutory footing of the freights, customs and import arrangements shall be the Incoterms 2010 of the ICC (International Chamber of Commerce).
10.) For the transport within Germany the Allgemeinen Deutschen Spediteurbedingungen (General German Carrier Conditions) latest version shall apply as agreed. If a part of the transport takes place outside of Germany the terms of the CMR shall apply.
11.) Oldenburg/Oldenburg shall be at any time the place of performance for the payment of the purchase price.
12.) The dispatch of the goods shall be effected at the expense and risk of purchaser to the arranged location (dispatching purchase).
13.) Unless otherwise agreed the invoiced amount shall be due after 7 days from the date of the issue of the invoice. On all orders the vendor shall have the right to make the delivery subject to the provision of security by the purchaser respective of the value of the goods ordered pertaining to each order separately.
14.) On maturity the vendor shall be eligible to charge interest in the amount of credit costs it has to pay itself at least in the amount of 8% above the respective base interest of the European Central Bank, the right to claim further damages shall be reserved.
15.) In the event of deliveries by instalments and part performance further supply shall be subject to the prior payment of the balance of the open amount.
16.) In the event of deficient delivery the claims of the purchaser shall be limited to the demand of error-free goods in replacement respectively acts of mending within a reasonable length of time. Further claims, particularly claims for compensatory damages for collateral negligence and tort, shall be precluded save where they are based on intention or gross negligence of the vendor or its vicarious agents.
17.) Until all claims have been settled (including all claims from current accounts) to which the vendor is entitled against the purchaser, on any legal ground whatsoever, now or in the future the following securities shall be granted, which it has to release on demand on its own discretion if and so long the securities' value exceeds the value of the claims by more than 30%.
17.1.) The goods shall remain property of the vendor. Processing and conversion shall always happen for the vendor as manufacturer yet shall not be binding upon it. Should the (joint) ownership of the vendor be terminated by way of physical connection it is agreed that the purchaser's (joint) ownership of the single object shall be transferred to the vendor to a proportionate extend of the value as per invoice. The purchaser shall keep the (joint) property of the vendor free of charge. Goods to which the vendor is entitled to (joint) property shall labelled as goods subject to retention of title.
17.2.) The purchaser shall be entitled to process and sell the goods subject to retention of title in due course of business as long as he is not in default. The bailment and mortgaging of goods shall be prohibited. A claim resulting from the resale or any other legal ground (processing, insurance, tort) with regard to the goods subject to retention of title (inclusively of all balance demands from the current account) takes place instead of the goods subject to retention of title. Hereby, the purchaser, assigns at the same time already now as a security such claims to the full extend to the vendor. The vendor authorizes the purchaser revocably to collect the claim assigned to the vendor for the vendor in its own name. This authorisation for collection shall only be revoked if the purchaser does not fulfil his payment obligations in a proper way. The vendor shall be entitled to notify the contractual partner of the purchaser about the assignation of choses in action.
17.3.) The purchaser shall be obliged to provide the vendor with information about the location of the goods subject to retention in title, the claims resulting from the processing and the underlying terms and conditions of the contracts as well as the partner to the contract by way of presentation of verifiable records and contract documents at each time. The vendor shall be obliged to re-assign to the purchaser such claims assigned to it pursuant to paragraph 19 in whole or in part if and so long the value of the assigned claims exceeds the value of the secured claims by more than 30%.
17.4.) In the event of the attachment by third parties on goods subject to retention of title the purchaser shall point out the property of the vendor and notify it without culpable delay.
17.5.) In the event of conduct contrary to the terms of the contract - particularly default of payment - the vendor shall be entitled to take back the goods subject to retention of title or, where applicable, to demand the assignment of the revindication of the vendor against third parties. The act of taking back as well as the seizure of the goods subject to retention of title by the vendor shall not be - if and so long statutory provisions do not stipulate otherwise - a rescission from contract.
18.) The purchaser shall be obliged to take the delivery and to inspect in each case for any defect and completeness. In the case of complaints of goods delivered (notice of defects) complaints must be made without any delay after the opportunity given to examine and checking the wood but no later than within 14 calendar days counted from the date of the receipt of the goods by the purchaser or his commissary in written form with the exact statement of the defects claimed as well as the quantity (number of pieces and/or percentage) of the affected goods and the storage location.
19.) All warranty rights of the purchaser and the associated claims of any kind shall be forfeited if he removes the goods from the storage location, processes the goods or intermingles them with other goods before a settlement has been reached or the vendor had the possibility for examination or perpetuation of evidence by a sworn qualified expert. The vendor is obliged to take advantage of the possibility to examine the criticised goods or the perpetuation of evidence by a sworn qualified expert within 10 calendar days after receiving the complaint. Should the vendor not avail of the examination within the aforementioned period of time after receiving the complaint the purchaser shall have the possibility to use his authorisation over the criticised goods when he himself has perpetuated evidence by sworn qualified experts.
20.) In the event of the perpetuation of evidence by purchaser and vendor the purchaser shall not be able to exercise his authorisation over the goods if the expert opinions diverge from each other. Until a settlement of the notice of defect with consent can be reached the goods shall be kept free of charge and must not be processed, intermingled or brought to any other location. If this happens nonetheless, the claim for defects shall be forfeited.
21.) Samples sent on approval shall not be subject to any fault-finding if articles of average quality or goods are delivered in accordance with usage which is not variating essentially from its intrinsic nature. Even in the event of an essential variation of quality any demand for goods in replacement and damages shall be precluded.
22.) In the event of complaint of the goods the purchaser shall be obliged to treat the rejected goods with all such due care as is customary for a responsible businessman and to avoid costs if possible even if use of the authorisation was already made elsewhere. As far as he has no storage location of his own the purchaser shall be obliged to take care of the appropriate storage on the account of whom it may concern. If the goods are stored in the storage location of the purchaser the purchaser shall be entitled to store them elsewhere on the account of the vendor if it does not make use of its authorisation over the goods within six weeks after the complaint of goods.
23.) If it is finally decided that the purchaser will not accept the goods, he shall be obliged to reload and dispatch the goods on the demand of the vendor provided that the vendor will refund the advanced freightage and other necessary expenses. The purchaser must only resend the goods after he had requested the disposal of the goods with a state period of three weeks in vain. The purchaser shall only have a claim for reasonable local storage charges in the event of storage if it is established that the goods will not be accepted and if since this point in time at least ten calendar days have been expired.
24.) In the event of the notice of defects the vendor shall be at liberty to agree to a reasonable diminution or to replace with goods free from defects within a reasonable period of time. The diminution shall be limited to the purchase price of the defective goods. A right of rescission shall be precluded. Further claims for damages shall only be applicable if and so long the vendor can be made accountable for intention or gross negligence.
25.) If latent defects are developing the purchaser shall be obliged to halt respectively call to halt the processing. Apart from that the conditions of the paragraphs. 21 to 29 shall apply accordingly.
26.) If doubts arise of the solvency of the principal the vendor shall have the right to withdraw from the contract or to demand appropriate security such as a deposit, a bond etc.
27.) In any dispute relating to purchase contracts, delivery contracts and agency agreements Oldenburg shall be the place of jurisdiction.
28.) Should one or more of the above terms and conditions be contrary to a statutory prohibition or otherwise legally void, the validity of the remaining provisions shall not be affected. The parties undertake to replace the invalid condition with the agreement on an economically equalling, legally stable condition.
29.) For the robinia wood delivered the standard qualities of the vendor shall apply in principle. If required, these qualities can be inspected separately or can be referred to on the Internet under www.eurobinia.net. In principle, all other qualities require written form and the approval of the vendor.
30.) For any amendments of contracts or discrepancies of the terms and conditions aforementioned written form shall be required.
Dated: 03 January 2011
The translation of the German terms and conditions of the company eurobinia were drawn up with greatest care. However, in case of disputes the German version of terms and conditions will be applied.