General Terms and
YUPO EUROPE GmbH („YUPO“)
1. Scope of Application
- 1.1. The following General Terms and Conditions apply for all current and future business relations between YUPO and its customers.
- 1.2. These General Terms and Conditions have exclusive application; general terms and conditions of the customer which conflict or deviate from these General Terms and Conditions shall not be recognized by YUPO unless YUPO has expressly agreed to their application in writing. These General Terms and Conditions shall also apply in the case that YUPO renders delivery to the customer without reservation and with knowledge of the customer’s conflicting or deviating terms and conditions.
2. Formation of the Contract
- 2.1. All of YUPO’s offers are non-binding.
- 2.2. Upon placement of an order, a customer makes an offer for the conclusion of a contract according to these General Terms and Conditions and the customer is bound to this offer for 14 calendar days after rendering said offer. A contract shall first come into effect if YUPO expressly accepts the order either by a written confirmation of order or in any other manner.
3. Prices and Payment Terms
- 3.1 All of the prices stated by YUPO are net sales prices. YUPO’s list prices are non-binding and can be changed by YUPO at any time without prior notice. Already concluded purchase agreements between YUPO and the customer remain unaffected by any changes of YUPO’s list prices.
- 3.2 The total purchase price is payable and due within 30 days of the invoice date. If the customer defaults in the payment of due payments YUPO is entitled to charge interest at 9 (nine) percentage points over the respective base rate per annum. If the customer is a consumer (§ 13 German Civil Code (Bürgerliches Gesetzbuch, BGB)), the interest is 5 (five) percentage points over the respective base rate per annum. Insofar as not otherwise explicitly agreed, payments shall be made in EURO.
- 3.3 The customer shall only be entitled to set-off rights if his counterclaims are determined with final, res judicata effect, are undisputed or are recognized by YUPO. In addition, the customer shall only be authorized to exercise a right of retention if his counterclaim is based on the same contractual relationship. In cases of delivery of defective goods, customer’s possibilities of offsetting such defect claims as well as with other claims from the same contract relationship against YUPO’s purchase price claim shall not be limited by these General Terms and Conditions; however, customer can only offset with claims from other legal relationships insofar as its claims are undisputed, YUPO has recognized such or such have been determined with legally valid res judicata effect. As the purchaser, the customer may only exercise a right of retention if its counterclaim is based on the same purchase contract
4. Delivery and Transfer of Risk
4.1. Delivery dates are only binding upon YUPO’s express agreement.
4.2.Should the customer’s order comprise more than one product, YUPO shall be entitled to render instalment deliveries if, for example, such should be necessary for technical or logistical reasons and such would be reasonable for the customer, after a balancing of his interests and the interests of YUPO.
4.3. Insofar as not otherwise agreed, the statutory provisions shall apply with regard to the transfer of risk. Place of fulfilment (“Erfüllungsort”) is Venlo (Netherlands) where YUPO operates a warehouse.
5. Trademarks and Logos
The customer is not entitled to reproduce YUPO’s trademarks or logos or to use these or other copyright and industrial property rights of YUPO for business purposes without the prior written permission of YUPO. YUPO retains all ownership and copyright rights to images, drawings, calculations and other documents.
6. Retention of Title
- 6.1. YUPO retains ownership title of the purchase object until receipt of all payments from the business relations with the customer.
- 6.2. The customer is obligated to treat the purchase object with care; in particular, he shall be obligated to sufficiently insure such at the replacement value at his own cost against damage caused by fire, water and theft. In the case of an event insured against, the customer shall assign his claims against the insurance company to YUPO without undue delay.
- 6.3. Any processing or alteration of the purchase object by the customer shall always be undertaken on behalf of YUPO as the manufacturer. Should the purchase object be processed with other objects not belonging to YUPO, YUPO shall acquire co-ownership in the new object in the proportional relationship of the value of the purchase object (invoice final amount including VAT) to the other processed objects at the date of the processing. Otherwise, the same shall apply for the good created by the processing as for the purchase object delivered subject to retention of title.
- 6.4. The customer is entitled to resell the purchase object in the normal course of business; however, he assigns to YUPO already now all claims in the amount of the invoice final amount (including VAT) of the claim of YUPO which are created for him from the resale against his customers or third parties, regardless of whether the purchase object is resold without or after processing. The customer shall remain authorized to collect this claim also after the assignment. The authority of YUPO to collect the claim itself shall remain unaffected herefrom. YUPO agrees, however, not to collect the claim as long as the customer meets his payment obligations from the collected proceeds, does not default in payment and, in particular, no application is filed for the opening of a settlement or insolvency proceeding or cessation of payment occurs. If this is, however, the case, YUPO can demand that the customer give notice to YUPO of the assigned claims and the debtor thereof, provide all necessary information for collection, hand over the documents related thereto and notify the debtor (third party) of the assignment.
- 6.5. Upon the customer’s demand, YUPO agrees to release the securities to which it is entitled insofar as the realizable value of its securities exceeds the claims to be secured by more than 10 %; the choice of the securities to be released is incumbent upon YUPO.
7. Liability for Defects
- 7.1 The statutory provisions shall apply for the rights of the customer with defects of quality and defects of title, insofar as not otherwise regulated in the following. The statutory special provisions with the final delivery of the goods to a consumer (supplier recourse (§§ 478, 479 German Civil Code (Bürgerliches Gesetzbuch, BGB) shall remain unaffected in all cases.
- 7.2 Defect claims of the customer shall precondition that the customer has met his examination and objection obligations owed pursuant to § 377 German Commercial Code (Handelsgesetzbuch, HGB).
- 7.3 Insofar as a defect of the purchase object exists, the customer shall be entitled to supplementary performance which shall be rendered, at the choice of YUPO, in the form of remedy of the defect or delivery of a new defect-free object. YUPO is entitled to make the owed supplementary performance dependent upon whether the customer has paid the purchase price which is payable and due. The customer is entitled, however, to retain a reasonable part of the purchase price in the proportional relationship of the defect. As a rule, double the costs necessary to eliminate the defect shall be deemed to be a reasonable amount.
- 7.4 Damage claims or, respectively, claims for the reimbursement of futile expenses which the customer claims shall occur only according to § 8 (Total Liability) hereof and are otherwise precluded.
- 7.5 In deviation of § 438, para. 1, No. 3 BGB, the general statute of limitations period for claims of defects of quality and defects of title shall be one year as of delivery. Insofar as an acceptance is agreed upon, the statute of limitations period shall commence upon the acceptance.
8. Total Liability
- 8.1. Claims of the customer for damages – regardless of the legal reason – are precluded. Excepted herefrom are damage claims of the customer arising from death, injury to body, health or as a result of a breach of essential contract obligations (cardinal obligations) as well as liability for other damage which is based on an intentional or grossly negligent breach of obligation of YUPO, its statutory representatives or vicarious agents. Essential contract obligations are such obligations with which the proper performance of the contract is first made possible at all and the performance of which the customer relied upon and which the customer should have been able to rely upon.
- 8.2. In the case of the breach of essential contract obligations, YUPO shall be liable only for damage which is typical for the contract and foreseeable if this was caused by ordinary negligence unless such concerns damage claims of the customer arising from death or injury to body or health.
- 8.3. The limitations of liability resulting from Clauses 8.1, 8.2 and 8.3 shall not apply insofar as YUPO intentionally misrepresented a defect by silence or assumed a guarantee for the quality of the goods. The same shall apply for claims of the customer according to the German Product Liability Act or if YUPO is manditorily liable for other reasons.
9. Force Majeure
YUPO shall not be liable in the case that the performance of the contract obligations from the contract fails because an event of force majeure causes a delay, prevention or interference with the performance. With force majeure, such concerns an unusual and unforeseeable event upon which the party relying thereon has no influence and said party could not have avoided the consequences thereof in spite of application of necessary care. Included herein are, for example, strikes, lock-outs, unforeseeable business disruptions, collapse of the business, war, riots, civil unrest, embargoes, unavoidable scarcity of materials and equipment, non-availability of transport ships or other means of transport and import and export restrictions.
10.1.Exclusive jurisdiction is in Düsseldorf insofar as the customer is a merchant.
10.2.The law of the Federal Republic of Germany shall apply to these General Terms and Conditions as well as all legal and contractual relations between YUPO and the customer, to the exclusion of the Uniform Law on the International Sale of Goods (CISG).
10.3.In the event of the invalidity of one or more provisions of these General Terms and Conditions, the legal validity of the General Terms and Conditions shall otherwise not be affected.
10.4. In case of doubt, the German version of these General Terms and Conditions is legally binding.