GTC
General Terms and Conditions of Sale and Delivery of EUROGLAS Verpackungsgesellschaft m.b.H.
1. Validity
These general terms and conditions (in the following referred to as GTC) are valid for all business relations between EUROGLAS (in the following also referred to as seller) and entrepreneurs, legal entities of the public law or special funds under public law. The General Terms and Conditions of EUROGLAS shall also apply to all future business with the customer, even if in the individual case no further express reference is made to the General Terms and Conditions. Contradictory conditions or conditions of the customer deviating from these general terms and conditions shall not apply, unless EUROGLAS has expressly agreed to their validity in writing. These general terms and conditions shall also apply if EUROGLAS executes the orders without reservation in the knowledge of conflicting or deviating conditions of the customer. As well then the general conditions of the customer do not become part of the contract. The general terms and conditions of EUROGLAS apply to all orders, no matter whether on the Internet, in writing, by telephone or in any other way. In addition, insofar as these general terms and conditions do not regulate anything different, the provision of the German Commercial Code, the provisions of the German Civil Code as well as the Incoterms of the International Chamber of Commerce in Paris in the respective version current at the time of delivery or performance shall apply. Individual agreements made with the Buyer in individual cases (including collateral agreements, supplements and amendments) shall in any case take precedence over these GTC. Subject to proof to the contrary, a written contract or written confirmation by the Seller shall be authoritative for the content of such agreements.
2. Offers and conclusion of the contract
1.
All offers of EUROGLAS are – in particular regarding quantity, price and delivery time – not-binding and are valid only with undivided order. This also applies if catalogues, technical documentations (e.g. drawings, plans, calculations, calculations, references to DIN standards), other product descriptions or documents – also in electronic form – are left to the buyer, at which the EUROGLAS reserves itself property rights and copyrights. EUROGLAS is not obligated to accept orders of the buyer.
2.
The order placed as EUROGLAS is a binding offer of the buyer. EUROGLAS will confirm the receipt of the order to the customer separately. This confirmation does not yet represent an acceptance of the offer of the customer. EUROGLAS will check the order and is entitled to accept this offer within 4 weeks by sending an order confirmation or to send the ordered delivery to the buyer within this period. The customer must object to an order confirmation sent later than 4 weeks within 4 working days, otherwise the contract with the contents of the order confirmation is considered as concluded, unless the order confirmation deviates substantially from the enquiry or the offer of the customer.
3.
Solely decisive for the legal relationship between EUROGLAS and the buyer is the purchase contract concluded in writing, including these GTC. This reflects all agreements between the contracting parties to the subject matter of the contract completely. Verbal promises of the seller before conclusion of this contract are legally non-binding and verbal agreements of the contracting parties are replaced by the written contract, provided that it does not result in each case expressly from them that they continue to apply obligatorily.
4.
Subject matter of the contract are only the services of EUROGLAS GmbH mentioned in the order confirmation. For additional services EUROGLAS is entitled to invoice these separately.
5.
Minor deviations such as material-related deviations from the illustrations or descriptions in catalogues, samples or show pieces on which the order is based, colour or grain deviations, are reserved. Such minor deviations do not constitute a defect.
3. Prices
1.
The prices shall apply ex warehouse in regards to the place of production listed in the order confirmation (Ex Works Incoterms 2020) as long as and insofar as no agreement to the contrary has been made. All prices are quoted in EUR and are exclusive of the applicable value added tax, unless expressly stated otherwise. Fees, taxes and other ancillary costs are not included in the prices. Deviating terms of payment are only effective if they have been expressly agreed in writing. For deliveries within the EU, the buyer must provide his VAT ID number. If no VAT is due on a delivery, the buyer must point this out in good time and provide the necessary proof.
2.
The prices stated in the offer / the order confirmation (whichever is applicable) are binding subject to an adjustment according to the following provision: EUROGLAS is entitled, in case of agreed deliveries, also on call, which are to be carried out more than 10 weeks after the order confirmation or which take place 8 weeks after the placing of the order due to a delay for which the customer is responsible, to adjust the prices to the corresponding extent due to changed levies, raw material costs, in particular procurement costs and other external costs which are included in the agreed price. In case of several changes a balancing will take place. EUROGS reserves the right to make an adjustment from a total change of more than 3%. If the price should change by more than 15 % in relation to the price stated in the offer/order confirmation due to the price adjustment carried out, EUROGLAS will try to agree on a new price adjustment by mutual consent with the customer. For this purpose, EUROGLAS will send a modified price proposal to the customer. If such an agreement is not reached within 7 days, calculated from receipt of the changed price proposal by the customer, then both EUROGLAS and the customer are entitled to cancel the still outstanding deliveries. Claims for damages, claims for fulfilment and other liability claims due to the termination of still outstanding deliveries are excluded.
4. Delivery periods and delivery
1.
Subject to deviating contractual agreement the delivery takes place ex works (EXW) of EUROGLAS according to Incoterms 2020 in relevance to the place of production listed in the order confirmation. The risk of accidental deterioration or accidental loss passes to the buyer as soon as the goods have left the factory. EUROGLAS shall not be liable for damage or loss during transport. This also applies if carriage paid delivery has been agreed. The transport respectively the commissioning of the transport company always takes place on behalf of and in representation of the buyer, unless something different has been agreed.
2.
If the dispatch, collection or delivery of the goods is delayed as a result of circumstances for which the buyer is responsible or desires, the goods shall be stored for the account and at the risk of the buyer after the expiry of five working days, calculated from the day of notification of readiness for delivery. Subject to special agreements, the proven storage costs shall be invoiced for this, but at least 5% of the invoice amount per month. The same procedure shall apply in the event of agreed pick-up.
3.
Delivery dates stated within the scope of order confirmations etc. are non-binding and also no fixed dates. By stating a delivery date EUROGLAS merely indicates a planned delivery date in the normal course of events. EUROGLAS is bound to the observance of the date only in case of an express written promise as a binding delivery date.
4.
The seller is not responsible for delays in delivery and performance due to force majeure and due to events which cannot be influenced by the seller and which make the delivery considerably more difficult or impossible for the seller – such as e.g. industrial disputes, riots, pandemics/epidemics, official measures, non-delivery/delays of deliveries of the sub-suppliers or a material and raw material shortage affecting the essential part of the industry – even in the case of bindingly agreed periods and dates. They shall entitle the seller to make the delivery/service later or to withdraw from the contract without the buyer being able to derive any claims for damages or claims for performance from this.
5.
Partial deliveries are permissible to a reasonable extent and will be invoiced separately. Excess or short deliveries of up to 10% and usual minor dimensional tolerances are permissible and do not entitle the buyer to make a complaint. Deliveries are permitted up to 4 weeks before the agreed delivery date.
6.
The customer is obliged to return pallets and intermediate layers/layer pads within 90 days of receipt of the delivery. If the customer does not fulfil this obligation, EUROGLAS is entitled to charge the costs for new pallets and layer pads to the customer also without reminder.
5. Retention of title
1.
The seller shall retain title to the delivered goods until all claims of the seller against the buyer arising from the business relationship, including future claims arising from contracts concluded at the same time or later, have been settled. This shall apply as well if individual or all claims of the seller have been included in a current account and the balance has been struck and recognised. The seller is entitled to take back the object of sale if the buyer is in breach of contract.
2.
As long as ownership has not yet passed to him, the buyer undertakes to treat the goods subject to retention of title with care and to insure them adequately at his own expense against fire, water damage and theft, in the case of high-value goods at the new price in each case.
3.
The buyer is not entitled to pledge the reserved goods to third parties or to assign them by way of security. However, the buyer is entitled to use the reserved goods and to resell them in the ordinary course of business as long as he is not in default with his payment obligations. The buyer shall assign to the seller by way of security the claims against his business partners arising from the sale. The seller accepts the assignment. The Seller revocably authorises the Buyer to collect the claims assigned to the Seller for the Seller’s account in its own name. The right of the seller to collect the claims himself shall not be affected thereby. However, the seller shall not collect the claims himself and shall not revoke the direct debit authorisation as long as the buyer duly fulfils his payment obligations. If the buyer acts in breach of contract towards the seller, in particular if he defaults on his payment obligations, the seller may demand that the buyer discloses the assigned claims and the respective debtors, informs the respective debtors of the assignment and hands over all documents to the seller and provides all information that the seller requires to assert the claims.
4.
The processing or transformation of the goods subject to retention of title by the buyer shall always be carried out in the name of and on behalf of the seller. If the goods subject to retention of title are processed with other items that are not the property of the Seller, the Seller shall acquire co-ownership of the new item in the ratio of the value of the goods subject to retention of title to the other processed items at the time of processing. If the reserved goods are inseparably combined or mixed with other items not belonging to the Seller, the Seller shall acquire co-ownership of the new item in the ratio of the value of the reserved goods to the other combined or mixed items at the time of combination or mixing. If the combination or mixing is carried out in such a way that the Buyer’s item is to be regarded as the main item, it shall be deemed agreed that the Buyer transfers co-ownership to the Seller on a pro rata basis. The seller accepts this transfer. The buyer shall hold the sole ownership or co-ownership of the item thus created in safe custody for the seller.
If the goods subject to retention of title are seized or if they are subject to other interventions by third parties, the buyer shall be obliged, as long as ownership has not yet passed to him, to inform the third party of the seller’s ownership rights and to notify the seller immediately in writing so that the seller can enforce his ownership rights. The Buyer shall be liable to the Seller for any judicial or extrajudicial costs incurred in this connection, unless the third party is able to reimburse the Seller for such costs. The Seller undertakes, at the Buyer’s request, to release the securities to which it is entitled to the extent that the realisable value exceeds the value of the outstanding claims against the Buyer by 10%. If the goods subject to retention of title are seized or if they are subject to other interventions by third parties, the buyer is obliged, as long as the ownership has not yet passed to him, to inform the third party of the seller’s ownership rights and to notify the seller immediately in writing so that the seller can enforce his ownership rights. The Buyer shall be liable to the Seller for any judicial or extrajudicial costs incurred in this connection, unless the third party is able to reimburse the Seller for such costs.
6. Payment and settlement
1.
The terms of payment agreed with the customer are binding. Unless otherwise agreed, the invoices of EUROGLAS are payable within 30 days from the date of invoice and delivery or acceptance of the goods without deduction.
2.
If a part of the delivery has not been delivered according to the order by the seller, the claim for payment remains valid with regard to the remaining part of the delivery. The seller may invoice separately for the part of the goods delivered in conformity with the contract, unless the partial delivery is of no interest to the buyer.
3.
The buyer may only set off against counterclaims which have been legally established or are undisputed and against claims arising from the same contractual relationship. § 369 HGB remains unaffected by this. EUROGLAS is entitled, in spite of other provisions of the buyer, to first offset payments against the older debts of the buyer. In this case the buyer is informed about the kind of the occurred set-off. If costs and interest have already arisen, EUROGLAS is entitled to set off the payment first against the costs, then against the interest and lastly against the main claim.
4.
Without prejudice to the agreed method of payment, the seller can demand advance payment for the delivery, if a) after conclusion of the contract a substantial deterioration in the financial circumstances of the buyer occurs or the seller becomes aware of a circumstance, from which justified doubts about the solvency of the buyer arise, unless the payment is guaranteed in another way, which secures the seller (e.g. bank guarantee), b) the buyer is in default with the acceptance, taking delivery or payment of a delivery.
5.
Payment is considered as effected only if EUROGLAS can dispose of the amount. In the case of cheques the payment is considered as effected only when the cheque is irrevocably cashed. Bills of exchange and cheques are only accepted on account of performance, bills of exchange only after separate agreement.
6.
If the buyer is in default with a payment, all other claims are also immediately due for payment, without a separate notice of default being required.
7.
EUROGLAS reserves the right to assign purchase price claims from deliveries of goods or from other deliveries and services to third parties. The assignment will be indicated to the buyer.
7. Defects and warranty
1.
The seller is not responsible for material defects which result from unsuitable or improper use, storage, faulty assembly or commissioning by the buyer or third parties commissioned by him, usual wear and tear, faulty or negligent treatment, as well as for the consequence of improper and without consent of the seller carried out changes or repair work of the buyer or third parties commissioned by him. The same shall apply to minor defects and to defects which only insignificantly reduce the value or suitability of the goods, such as minor scratches. The standards and technical rules of the CETIE as well as the AQL tables apply to the contractual relationship between EUROGLAS and the customer. These are available at https://www.cetie.org/en/. These standards and rules define, among other things, when a deviation is to be classified as a defect. If the buyer discovers defects in the goods, he may not dispose of them, i.e. they may not be divided, resold or further processed until an agreement has been reached on the settlement of the complaint.
2.
Warranty claims of the customer because of a defect at the goods exist only if the customer reports these defects in writing to EUROGLAS within 10 days after receipt of the goods or in case of hidden defects immediately after their discovery under specification of the alleged defect. Otherwise, all warranty claims and the claims for damages connected with this are excluded. The customer’s obligation to inspect extends to the entire delivery received. Decisive for the timeliness of the notice of defects is the receipt of the notice of defects in written form at EUROGLAS. As long as and as far as justified defects are reported, EUROGLAS is obliged, according to its choice to be made within a reasonable period, to deliver a defect-free item in exchange for handing over the defective item or to remedy the defect. In any case the customer is obliged to pack the defective thing properly and to send it to EUROGLAS to enable its warranty obligation. The associated, comprehensible, reasonable and proven expenses shall be borne by the seller in case of a justified notice of defect. If the supplementary performance fails (after two attempts), the customer is entitled either to reduce the agreed purchase price or to withdraw from the contract. In the case of minor defects and defects which only insignificantly reduce the suitability of the goods, the customer shall not be entitled to withdraw from the contract.
If a defect is due to the fault of EUROGLAS, the customer may claim damages under the conditions stipulated in VIII. 3.
3.
The warranty period is one year from the transfer of risk of the goods. The reduction of the warranty period to one year does not apply to claims of the customer for which the liability is not limited (VIII). Other special statutory provisions on the limitation period (in particular § 438 para. 1 no. 1, para. 3, §§ 444, 445 b BGB) shall also remain unaffected. The guarantee does not extend to alleged defects which result from natural wear or improper treatment. In particular EUROGLAS is not liable for changes of the sent goods by an improper handling or storage. The guarantee obligation of the EUROGLAS does not exist if the customer carries out a rework himself without approval of the EUROGLAS or lets rework by third parties.
8. Claims for damages, liability
1.
As far as nothing else results from these terms and conditions including the following regulations, EUROGLAS is liable in case of a violation of contractual and non-contractual duties according to the legal regulations.
2.
EUROGLAS shall be liable for damages – irrespective of the legal ground – within the scope of the fault liability only in case of intent and gross negligence. In the case of simple negligence it is liable subject to a milder liability standard according to legal regulations (e.g. for care in own affairs) only for a) damages from the injury of the life, the body or the health, b) for damages from the not insignificant injury of an essential contractual obligation (obligation whose fulfilment makes the proper execution of the contract possible at all and on whose observance the contracting partner regularly trusts and may trust); in this case (b) the liability is limited, however, to the substitute of the predictable, typically occurring damage.
3.
The limitations of liability resulting from point 8.2. shall also apply in case of breaches of duty by or in favour of persons whose fault EUROGLAS is responsible for according to legal regulations. They do not apply, as far as a defect was fraudulently concealed or a guarantee for the condition of the product was taken over and for claims of the buyer according to the product liability law.
4.
The buyer can only withdraw or terminate because of a breach of duty which does not consist in a defect if the breach of duty is to be represented by EUROGLAS. A free right of termination of the buyer (in particular according to §§ 650, 648 BGB) is excluded.
5.
The liability is generally limited with an amount in the amount of the goods value of the respective delivery. Liability for loss of profit, consequential damages or for damages due to claims of third parties is excluded. This shall not apply in cases of liability due to intent and gross negligence as well as in the cases of section 8.2 sentence 2 (a) and (b) as well as in cases of liability according to the Product Liability Act.
6.
EUROGLAS does not assume any liability for damages as a result of improper handling of the delivered goods. As well no liability is assumed for work of third parties, which are carried out subsequently on the delivered goods.
9. Proof of Export
If the customer collects the goods himself or through an agent and transports or dispatches them to a region outside the European Community, the customer has to provide EUROGLAS with the export certificates required for tax purposes. If these proofs are not presented, then the customer has to pay the value added tax rate valid for deliveries within the Federal Republic of Germany from the invoice amount.
10. Place of performance, place of jurisdiction, applicable law and other matters
1.
Place of fulfilment for all mutual obligations as well as for the payment of the purchase price is the company seat of the seller, 87656 Germaringen.
2.
The contractual relationship between EUROGLAS and the buyer is exclusively subject to the law of the Federal Republic of Germany. The provisions of the United Nations Convention on Contracts for the International Sale of Goods (“UN Sales Convention” or CISG) shall not apply to this contractual relationship.
3.
If the buyer is a merchant in the sense 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 is the registered office of EUROGLAS, Am Riederloh 26, 87656 Germaringen. The same applies if the buyer is an entrepreneur in the sense of § 14 BGB. However, EUROGLAS is also entitled in all cases to bring an action at the place of performance of the delivery obligation according to these GTC or a priority individual agreement or at the general place of jurisdiction of the buyer. Overriding statutory provisions, in particular on exclusive jurisdiction, shall remain unaffected.
4.
Should one or more provisions or parts of a provision of these terms and conditions of sale and delivery be ineffective or become ineffective for any reason, the validity of the remaining provisions shall not be affected thereby. The Purchaser and EUROGLAS undertake to replace the ineffective provisions or partial provisions by provisions which best correspond to the purpose of the contract. The same applies to the case of unintentional incompleteness.
As of 11/2022
