General Terms and Conditions ERO (Status: September 2005)
1. The general terms and conditions do not apply to the business volume with consumers in accordance with Art. 13 German Civil Code.
II. Conclusion of the Contract, Documentation
1. The ordering party is bound to an order for a period of four weeks. The contract is concluded, when ERO has confirmed in writing the acceptance of the order within this period. Scope of the supply and price shall be determined through the written order confirmation by ERO.
2. The contracting parties mutually agree that no supplementary verbal agreements have been concluded, and that contract modifications are to be in written form.
3. ERO reserves all the property rights and copyrights on pictures, drawings, calculations and other documents. They shall not be made available to third parties, unless the ordering party obtains an explicit written consent before their dissemination. This applies particularly to written documents described as confidential.
III. Delivery and Default of Delivery
1. Force majeure or business disruptions occurring at ERO or its suppliers, such as riot, strike, lockout, temporarily preventing ERO without its fault from rendering the service on the agreed date or within the agreed period of time, extend the agreed terms by the duration of the business disruption caused by such events. In case such a failure delay the performance for more than four months the ordering party shall have the right to recede from the contract.
2. The contract shall be concluded subject to the duly and timely delivery by the sub-suppliers. This applies only in the case ERO is not responsible for the non-delivery, particularly in the case of an agreement for adequate coverage with the sub-supplier. The ordering party shall be timely informed about the unavailability of the service. The consideration shall be timely repaid.
IV. Risk Transfer and Acceptance
1. The risk of an accidental loss and the fortuitous deterioration of the subject of the contract is transferred to the ordering party upon the delivery of the goods, in the case of a mail order purchase upon the delivery of the goods to the freight forwarder, carrier or the person or establishment otherwise entrusted with the shipment.
2. In relation to the effected delivery, delays in acceptance by the ordering party are irrelevant.
3. Any liability for consequential damages caused by defects is excluded.
1. In the case the purchased goods are exported, the ordering party has to obtain all the necessary export documents (e.g. export licences and customs authorizations) at his/her own expense. ERO is not liable for the lawfulness of the exportation of the goods or their compliance with the legal and technical regulations of the country of importation. ERO is also not liable in relation to the compliance of the goods with the technical standards of the country of importation.
VI. Retention of Title
1. The delivered goods remain the property of ERO up to the full settlement of ERO’s receivables by the ordering party in relation to the current business relationship. The retention of title persists also in relation to all the receivables acquired by ERO against the ordering party in connection with the supply of the goods, for instance through supplementary supplies or other services.
2. The ordering party is entitled to resell the supplies of goods in the course of his/her regular business; however, he/she transfers from now on all the accounts receivable for the amount of the agreed purchase price to ERO, which the ordering party accrues from the resale, and independently from whether the supplies are resold without or upon their processing. The ordering party shall be entitled to the collection of such receivables upon their assignment. ERO engages not to collect the receivables as long as the ordering party regularly fulfils his/her payment obligations and is not short in payment. Otherwise, ERO is entitled to request the ordering party to disclose the transferred receivables and the relevant debtors, give all the necessary indications for the collection, forward the relevant documentation and notify the debtors (third parties) about the assignment.
3. As long as the retention of title exists, any sale, pledging, transfer by way of security, leasing or other kind of surrender or modification of the delivery item prejudicing ERO’s protection is possible only upon the prior authorization in writing by ERO.
4. In the case of third parties taking action, particularly of attachment of the supply of goods, the ordering party shall immediately inform ERO in writing and notify the third party without delay about ERO’s retention of title.
1. Second-hand subjects of the contract are supplied and sold excluding any guarantee.
2. The exclusion does not affect the liability for personal injury and gross negligen.
1. ERO is liable for damages – regardless of the legal ground – in the event ERO, its legal representatives or vicarious agents should have caused them intentionally or through gross negligence. In the event of a slight negligence, any liability is excluded except for items 3. and 4.
2. Likewise, the personal liability of ERO’s legal representatives, vicarious agents and employees is excluded for damages caused by their slight negligence except for items 3. and 4.
3. The aforesaid limitations of liability shall not apply to liabilities due to malice, gross negligence, acting as surety, supply risk taken, offence against a person’s life, bodily injury, health harm or infringement of substantial contractual obligations. Substantial contractual obligations are obligations, whose breach leads to a claim for damages in the place of the service according to Articles 280, 281, 283 or 311a German Civil Code.
4. Claims for damages by the ordering party against ERO or collaborators of ERO due to the breach of substantial contractual obligations are restricted to predictable standardized damages, as long as there is no liability for malice, gross negligence, acting as surety, supply risk taken, offence against a person’s life, bodily injury or health harm. The modification of the burden of proof to the detriment of the ordering party is not associated with the aforementioned provisions.
5. In the case of a delay in delivery, the lump-sum settlement is additionally applicable in accordance with the aforementioned Item 4.
6. In the case ERO should be compulsorily liable according to the product liability regulations for property damages and personal injuries due to product defects, the provisions of the product liability regulations shall have the priority. In relation to an internal settlement according to Item 5 Clause 2 of the product liability regulations, this does not alter the aforementioned provisions.
7. In relation to the compliance with the prescriptions established by the law, the authorities and the accident prevention & insurance association, only the ordering party shall be liable in the utilization of the goods/services.
IX. Right of Refusal of Service, Right of Retention and Set-off Right
1. The ordering party can set off claims by ERO only if the ordering party’s counterclaim is unquestioned or a legally binding right exists; he/she can claim a right of retention only in the case it is based upon claims deriving from the contractual relationship, which ERO bases its claims upon. This restriction does not apply to the right of retention of Art. 320 German Civil Code.
1. According to Art. 33 of the German Data Protection Act, the ordering party shall be notified that his/her data will be stored by ERO. The data shall be processed in compliance with the German Data Protection Act.
XI. Supplementary Clauses
1. The only applicable law shall be the German law, with the exclusion of laws regarding the international purchase of movables, even in the case the ordering party should be based abroad.
2. Place of fulfilment for all the supplies and services shall be the ERO plant, and, alternatively, the shipment division. Place of fulfilment for payments shall be the ERO head-office.
3. For any present-day and future claims based on the business relationship, including note and cheque receivables, the only place of jurisdiction shall be the ERO domicile in Niederkumbd.
4. The nullity of one or more of the articles shall not affect the validity of the remaining articles. Should an article of these terms and conditions be or become void, or should something appear to be missing, an adequate provision shall then apply, which should – within the provisions of the law – come as close as possible to the purpose of the parties or to what the parties’ purpose would have been, if they had considered that point.