General terms and conditions (13.10.2015)
of EUROstor GmbH, Hornbergstraße 39, 70794 Filderstadt, Germany
– hereinafter called EUROstor –
1. General information, definitions
(1) EUROstor offers its customers the acquisition of IT storage systems.
(2) The following General Terms and Conditions shall apply for the business relation between EUROstor and the customer in its version as amended at the time of the order.
(3) Customers, as defined by the general terms and conditions, are exclusively natural persons, corporate bodies or partnerships with legal capacity, acting at the time of conclusion of the business transaction in a corporate capacity or in their capacity as selfemployed professionals (Entrepreneur in terms of § 14 Bürgerliches Gesetzbuch (BGB)[German Civil Code]).
(4) Individual contractual agreements take priority over these general terms and conditions. Any divergent, conflicting or supplementing general terms and conditions will not become part of the contract, unless their validity is expressly accepted.
(1) Unless otherwise stipulated all offers of EUROstor are subject to change without notice. In particular, the presentation of the goods on the web page and/or in EUROstor catalogues, does not constitute an offer in the legal sense. Due to the technically limited means of display the goods ordered may differ slightly, within reason, from the goods displayed on the Internet; in particular, generally accepted color variations may occur.
(2) EUROstor reserves the right to accept or to reject orders.
(3) The customer may place the order by e-mail, by fax or in writing. The customer order constitutes a binding offer for the conclusion of a sales contract concerning the EUROstor system ordered. A sales contract is concluded only after EUROstor’s respective remittance of an order confirmation and is subject to these general terms and conditions.
(4) The sales contract is effected with the provision that, in case of incorrect or inadequate self-supply, performance will not or only partially be fulfilled. This only applies in case that EUROstor is not responsible for the non-delivery and that EUROstor, with due diligence, concluded a concrete covering transaction with the supplier. EUROstor will make all reasonable efforts in order to obtain the goods. Failing this, the consideration will be refunded immediately. In case the merchandise is not or only partially available the customer will be informed immediately.
3. Prices, date and scope of delivery, shipment and passing of risk
(1) Unless otherwise agreed between the parties on an individual basis, the prices are quoted ex stock Filderstadt. The respective applicable V.A.T., shipping, packing and transport insurance are charged additionally.
(2) EUROstor is only committed to keep to delivery terms and delivery dates, agreed upon in a particular case, if the customer duly complies with the contract.
(3) The shipment is carried out at the customer’s risk. As soon as the goods are handed over to the carrier / transport agency or to any other person responsible for carrying out the transport, the risk of accidental loss and accidental damage of the goods passes to the customer. This applies also in case the transport costs were borne by EUROstor. The goods are also deemed to be delivered in case the customer is in default of acceptance.
(4) Partial deliveries by EUROstor are admissible, insofar as a partial delivery can be reasonably imposed on the customer in due consideration of his interests. This, however, does not affect the terms of the contract, in particular the performance owed by EUROstor or a time of performance agreed upon.
(5) In case a transport insurance for the delivery of the goods was taken out, the customer is committed to check the goods immediately after reception and, in the event that a transport damage is apparent, to report the damage in writing within 3 days; otherwise no insurance payment will be made.
4. Terms of payment
(1) As a matter of principle all invoices are to be paid net immediately after reception, unless different terms were expressly agreed upon. In case of partial deliveries this applies to the value of the partial deliveries.
(2) When ordering for the first time the seller may request payment in advance or cash on delivery. This also applies in case the buyer exceeded the credit limit granted to him.
(3) Unless any other terms of payment were agreed upon individually per mail, fax or in writing, the customer is committed to pay the total price within 14 days after date of invoice. After the expiration of this term the customer will be in default. During the default the customer will have to pay interest on the amount owed in the amount of 9 percentage points above the prime lending rate. Moreover, in case of default, the customer owes a lump sum payment amounting to Euro 40.00. This applies also in case the customer is in default with a down-payment or any other instalment payment. EUROstor reserves the right to
claim a higher damage caused by delay. The lump sum payment mentioned in clause 3 will be taken into account provided the damage claim is owing to costs of prosecution.
(4) The customer is entitled to offsetting only in case his counterclaims were ascertained and recognized in a legally binding manner or are undisputed by EUROstor. The customer’s right to offsetting with contractual and other claims resulting from the initiation or execution of this contractual relationship will remain unaffected hereof. The customer’s right of retention can only be executed in case his counterclaim is based upon the same contractual
5. Reservation of title
(1) EUROstor reserves the title of the goods until the full payment of all claims resulting from an ongoing business relation.
(2) In case of the customer’s conduct being contrary to the terms of the contract, in particular in case the customer defaults on payment, in case of the customer’s faulty information concerning his financial standing or in case a petition for the opening of insolvency proceedings is filed, EUROstor – after fixing a deadline, as the case may be – is entitled to withdraw from the contract and to claim the restitution of the goods, should the customer have failed to effect payment or only effected partial payment.
(3) The customer is entitled to re-sell the goods in an ordinary business transaction. As of now the customer assigns to EUROstor all his claims in the amount of the invoice amount resulting from the re-sale to a third party. EUROstor accepts the assignment. After the assignment the customer is entitled to collect the outstanding amount. EUROstor reserves its right to collect the outstanding amount as soon as the customer fails to comply with his financial obligations and is in default of payment.
(4) At the request of the customer, EUROstor is committed to release the securities assigned to it in case the liquidable value of the securities exceeds the claim by more than 10 percent. The selection of the securities to be released rests with EUROstor.
6. Duties of the customer
The customer is committed to make adequate provisions in case the EUROstor system fails to perform adequately in whole or in part (e.g. by data backup, error diagnosis, regular revision of results, emergency planning). It is the customer’s responsibility to ensure the operational capability of the work environment of the EUROstor system.
(1) The customer is entitled to a legal warranty right, amended in accordance with §§ 7, 8 of these general terms and conditions.
(2) Goods ordered may differ slightly, within reason, from the goods displayed on the Internet / in catalogues. We refer to clause 2, para. 1 of these general terms and conditions.
(3) In case defective goods were supplied, remediation of the defect or replacement will be granted at EUROstor’s discretion.
(4) Should the supplementary performance fail, the customer, as a matter of principle, at his discretion and instead of the service provision, may request a reduction of the sales price (abatement), cancellation of the sales contract (rescission) or compensation for damages. Taking into account the interests of both parties, the customer will not be granted the right to withdraw from the contract in case of minor defects. Instead of requesting compensation for damages the customer, in line with § 284 BGB, may request compensation for futile expenses incurred, since he correctly relied upon the reception of the goods. In case the customer chooses compensation for damages instead of the service provision, the liability limitations according to § 8 para. 1 of these general terms and conditions will apply.
(5) In case of evident defects of the goods supplied it is the customer’s responsibility to inform EUROstor about these defects within a period of two weeks as of the reception of the goods; non-observance of this stipulation will release the seller from his warranty obligation. To meet the deadline timely mailing or information shall suffice. For traders § 377 HGB [German Commercial Code] will apply.
(6) As a matter of principle only the product description by EUROstor is authoritative for the quality of the goods. Besides this, public statements, targeting or promotion of the manufacturer do not represent any contractual quality of the goods.
(7) The warranty period is 1 year after delivery. The one-year warranty period does not apply in case of gross negligence on the part of EUROstor; moreover, it does not apply in case of physical injury or other health reasons attributable to EUROstor and in case of death of the customer, in case of a warranty and in the event of a delivery recourse in accordance with §§ 478, 479 BGB. The liability of EUROstor in accordance with the Product Liability Act will remain unaffected hereof.
(8) In deviation from clause 7 the regular warranty period will apply in case a defect was intentionally concealed by EUROstor.
(9) Unless expressly agreed upon otherwise, EUROstor does not provide any warranty in the legal sense. Any warranties of the manufacturer will remain unaffected hereof.
8. Liability limitations
(1) In case of slightly negligent breaches of duty liability is restricted to the predictable immediate average damage typical for the contract, in accordance with the type of the goods. This also applies for slightly negligent breaches of duty of EUROstor’s legal representatives or its performing and vicarious agents. EUROstor is not liable in the event of a slightly negligent violation of insignificant contractual obligations. EUROstor, however, is liable in the event of a violation of essential contractual legal positions of the customer. Essential contractual legal positions are those which the contract has to grant to the customer in accordance with the content and purpose of the contract. Moreover, EUROstor is liable in the event of a violation of obligations the fulfillment of which was a prerequisite for the due execution of the contract and upon the compliance of which the customer may rely on.
(2) The aforementioned liability limitations do not refer to claims of the customer resulting from warranties and/or product liability. Furthermore, the liability limitations do not apply in the event of fraudulent intent, violation of essential contractual obligations and in case of physical injury or other health reasons attributable to EUROstor or in case of death of the customer.
9. Export licence
In case the goods supplied are shipped abroad the customer has to adhere to the valid legal provisions of the Federal Republic of Germany and the manufacturing country.
10. Final provisions
(1) All agreements are subject to German law. The United Nations Convention on Contracts for the International Sale of Goods shall not apply. §§ 15 para. 1, 37 para. 3 TDSG shall remain unaffected.
(2) In case the customer is a trader, a corporate body under public law or a special fund under public law, the place of venue for all disputes arising from this contract is the competent court at EUROstor’s head office, unless an exclusive place of venue is stipulated. Nevertheless, EUROstor is also entitled to sue the trader at the respective court of his place of residence or business location. Jurisdiction due to an exclusive place of venue shall remain unaffected hereof.