General Terms and Conditions of Sale (Export business DORMA Region CE)
1.1 The terms and conditions set out below shall form an integral part of any agreements and sales contracts concluded within the export business between companies of DORMA Group located in the CE Region (Germany, Switzerland, Belgium and Netherlands) (hereinafter DORMA) and customers having its business seat outside the relevant countries. (hereinafter referred to as Export Businesspartner "EBP")
1.2 This General Terms and Conditions of Sale in its latest version shall apply in accordance with the latest version to all subsequent transactions without any need of express reference thereto or agreement thereon at the conclusion of such transaction.
1.3 DORMA hereby objects and expressly contradicts to any counter order confirmation, counter offer or other reference by the EBP to its general terms and conditions; any dissenting terms and conditions of the EBP shall only apply expressly confirmed by DORMA in writing.
1.4 EBP may not assign any claims arising from transactions without written approval of DORMA.
2. Offers; Orders
2.1 Any offers made by DORMA shall not be binding; in particular with reference to quantities, price and delivery time.
2.2 Orders placed by the EBP shall not be regarded as accepted before being confirmed in writing by DORMA. If DORMA should fail to confirm an agreement in writing which has been entered into verbally or in a telephone conversation, DORMA’s invoice shall be regarded as order confirmation.
3. Prices; Weight
3.1 All prices given are excluding any statutory VAT which shall be payable at the date of delivery.
3.2 If, as a result of a change of law between the date of contract and the delivery date, additional or increased charges - in particular duties, levies, currency compensation payments, shall be payable, then DORMA shall have the right to increase the purchase price accordingly. The same shall apply to any examination costs.
4. Quantity; Quality; Labelling
4.1 Unless otherwise agreed or confirmed in writing, the quality of the goods shall be in accordance with customary trade practice and the features and specifications given within the product literature.
5. Shipment; Delivery
5.1 Unless otherwise agreed the goods shall be transported (Exo Incoterms 2000) Even in cases of any delivery free of charge and regardless of which means of transport shall be used the goods shall be transported uninsured and in any event at the risk of the EBP. Any transport insurance shall be provided only upon express demand of the EBP. Any costs arising therefrom shall be at the expense of the EBP only.
5.2 In cases of delivery by DORMA the selection of the place of dispatch and the transport route and the means of transport shall, in the absence of any written arrangement dictating otherwise, be subject to DORMA’s reasonable discretion and be without liability for the cheapest and fastest transport.
5.3 If the EBP provides the means of transportation, then availability shall be his responsibility at any time. DORMA shall immediately be informed of any delays. Any costs arising therefrom shall be at the expense of the EBP.
5.4 DORMA shall have the right to reasonable delivery in instalments at any time.
5.5 DORMA’s delivery obligation shall at all times be subject to timely and orderly receipt of the goods from its own suppliers.
5.6 Unless otherwise expressly agreed in writing, any indicated time of delivery or unloading shall be non-binding.
5.7 Any inability to supply as a result of force majeure or other unforeseen incidents outside DORMA’s responsibility including, without limitation, strike, lock out, acts of public authorities, subsequent cease of export or import opportunities and the reservation of timely supply from own suppliers in accordance with subsection (5) above shall, for their duration and in accordance with their impact, cease DORMA from the obligation to comply with any agreed time for delivery and unloading.
5.8 If any agreed time of delivery or unloading shall be exceeded and there shall be no incident referred to in subsection (5.7) above, then the EBP must specify a reasonable cure period of minimum two weeks. If DORMA should fail to meet such deadline also, then the EBP shall have the right to rescind the agreement but shall have no right to seek compensation for breach of contract or default unless in cases of wilful misconduct or gross negligence on DORMA’s part.
6. Inspection and Objection by EBP
6.1 Upon delivery at the agreed destination or (in the event of self supply) upon taking possession, the EBP shall immediately
- a) check quantities, weight and packaging and record any objections thereto on the delivery note or consignment note and/or the acknowledgement of receipt/ and
- b) conduct a quality check representatively on a spot check basis and, for such purpose, open the packaging
6.2 In case of notice of defect the EBP shall comply with the following procedures and deadlines:
- a) The notification shall be made without further delay by no later than the expiry of the working day on which the delivery of the goods to the agreed destination or on which possession of the goods has been taken. In the event of an objection to a hidden defect which, despite a first inspection in accordance with subsection (1) above, has remained undiscovered a different deadline regime shall apply. In such case the objection must be raised immediately within the same working day on which the defect has been discovered but in any event by no later than two weeks after delivery or take over of the goods.
- b) The detailed notice shall be delivered to DORMA within the aforementioned deadlines in writing. Any notice by telephone conversation shall not be accepted. Any notice to sales representatives shall not be valid.
- c) The notice must clearly specify the kind and amount of the alleged defect.
- d) The EBP agrees to make available or send back free of charge upon request for inspection the objected goods at the place of inspection; such inspection may be done by DORMA, the suppliers or any designated expert
6.3 No objections with regard to quantities, weight or packaging of the goods shall be possible unless a note has been placed on the delivery note or a consignment note or a receipt of acknowledgement in accordance with subparagraph (6.1)
- (a) above. Moreover, right to object shall cease to exist, when the EBP has mixed, used or resold the goods delivered or shall have started its processing.
6.4 Any good to which objections shall not have been raised in accordance with the procedures and deadlines set out above shall be regarded as approved and accepted.
7. Warranty; Limitation of Liability
7.1. DORMA grants a warranty for a period of 2 years, starting from the time of passing of the risk.
7.2 Upon justified objections which shall have been raised in accordance with the procedures and deadlines hereunder, the EBP shall have the right to claim delivery of non defective goods which shall be without prejudice to the right, to provide the return of the objected goods.
7.3 The EBP shall not be entitled to any further rights or remedies. In particular, DORMA shall not be responsible for any compensation based on breach of contract or default unless the goods shall lack a characteristic that DORMA shall have expressly guaranteed or in cases of wilful misconduct or gross negligence on its part.
8.1 All purchase price claims are net cash amounts and payable free of any deduction within 30 calendar days after receipt of the invoice unless other payment terms have been agreed.
8.2 If the invoice amount is not be settled within 30 calendar days after the date of invoice or at any other due date, then DORMA shall without the need to a separate warning notice have the right to recover default interest in a proven amount but in any event an amount equalling 8% above the base rate of the European Central Bank.
8.3 If the EBP's business shall be operated beyond the ordinary course of business which shall include, without limitation, acts of seizure, payments shall be delayed or even discontinued or judicial or out of court settlement or insolvency proceedings shall have been petitioned or opened or proceedings in accordance with the relevant local bankruptcy laws shall have been petitioned, then DORMA shall have the right to declare all our claims arising from the business relationship as immediately payable. The same shall apply if the EBP shall be in payment default or other incidents shall surface which give rise to doubts about its creditworthiness. Moreover, DORMA may in such event demand prepayments or a security deposit or terminate the agreement.
8.4 The EBP shall have no right to set off, retention or reduction unless the underlying counterclaims have been conclusively determined by a court or expressly acknowledged by DORMA.
9. Retention of Title
9.1 DORMA shall retain full title of the delivered goods until the EBP has discharged all claims arising from the business relationship which shall include any account balance.
9.2 The EBP shall have the right to dispose the goods delivered within the ordinary course of business. The entitlement granted hereunder shall cease in the cases referred to in subsection (8.4) above. Moreover, DORMA may withdraw the sales authority of the EBP through written notice if it shall be in breach of any obligation owed to DORMA and shall in particular be in payment default or DORMA shall become aware of other incidents that give rise to doubts about its creditworthiness.
9.3 The EBP's right to process the goods delivered shall also be subject to the limitations set out in subsection (9.2) above. The EBP shall not acquire title to the fully or partly processed goods; the processing shall be free of charge for DORMA’s benefit as Manufacturer in the sense of § 950 of the German Civil Code. If DORMA should, for whatever reason, lose rights under the retention of title, then it is hereby agreed between the parties that DORMA shall acquire title upon processing of the goods and the EBP shall remain custodian of the goods which shall be free of charge.
9.4 If the goods in which DORMA has retained title shall be inseparably assembled or mixed with goods that are third party property, then DORMA shall acquire co-title in the new goods or the mixed stock. The proportion of title shall follow from the proportion of the invoice value of the goods delivered by DORMA under retention of title and the invoice value of the other goods.
9.5 Goods in which DORMA shall acquire sole or co-title in accordance with subsection (9.3) and (9.4) shall, the same as with regard to the goods delivered under retention of title according to subsection (9.1) above, be regarded as goods delivered under retention of title for the purposes of the following paragraphs.
9.6 The EBP hereby assigns all claims arising from the resale of the goods delivered under retention of title. Such claims shall also include claims against the bank which, within the scope of such sale, shall have issued or confirmed a letter of credit for the benefit of the EBP (= reseller). DORMA hereby accepts such assignment. If the goods delivered under retention of title shall be a processed good or a mixed stock, where, in addition to the goods delivered by DORMA only such goods exist that are either the EBP's property or a third party property as a result of a (simple) retention of title, then the EBP shall assign all of the claim arising from the resale. In the other case, i. e. in the event of a conflict between pre-assignment claims by other suppliers, DORMA shall be entitled to receive any resale proceeds on a pro rata basis which shall be determined in proportion to the invoice value of goods and the other processed or mixed goods.
9.7 Where claims shall undoubtedly be secured through the assignment and retention by more than 125%, any surplus of receivables and/or good delivered under retention of title shall, upon demand of the EBP, be released on DORMA’s discretion.
9.8 The EBP shall be entitled to collect any receivables arising from the resale of goods. Such entitlement shall cease to exist in the event that there shall no longer be an ordinary course of business as defined in subsection (9.4) above. Moreover, DORMA may withdraw the EBP's authority to collect, if it shall be in breach of any obligation owed to DORMA and shall in particular be in payment default or DORMA shall become aware of other incidents that give rise to doubts about its creditworthiness. If the above authority shall cease to exist or be withdrawn by us, then the EBP shall upon DORMA’s request immediately specify its debtors in the claims assigned and provide DORMA with all information and documentation necessary for collection.
9.9 In the event of any third party action against goods delivered under retention of title or any receivables assigned, the EBP shall notify such party of DORMA’s property right and immediately inform DORMA about such action. The EBP shall bear the costs of any intervention.
9.10 If the EBP shall be in breach of contract, in particular in payment default, then it shall, upon DORMA’s demand, immediately return all goods delivered under retention of title and assign any repossession claims against any third party in conjunction with such goods. Any repossession or enforcement proceedings with regard to the goods delivered under retention of title shall not be regarded as a termination of this agreement.
9.11 In the cases referred to in (9.4) above, the EBP is obliged, to inform DORMA about the claims arising from the resale that have been assigned to DORMA in accordance with (9.6) above including its debtors. Following such information, DORMA shall have the right to disclose the assignment as considered to be appropriate.
10. Final Provisions
10.1 The place of performance for deliveries shall be the place of destination.
10.2 The court of Düsseldorf shall have jurisdiction over all disputes arising from the individual contracts. However, DORMA may also choose a different place of jurisdiction.
10.3 The laws of Germany shall apply. International purchase laws shall not apply. This shall, in particular, refer to the UN Convention (CISG) on the International Sale of Goods.
10.4 The invalidity of any provision of these general terms and conditions of sale shall not affect the validity of the other provisions. Invalid provisions shall be deemed to be replaced by such valid provisions that shall be suitable to implement the economic purpose of the deleted provision to the highest extent possible.
10.5 DORMA shall be entitled to store the data of the EBP in accordance with the German Data Protection Act.
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- DORMA Automatic GmbH + Co. KG
- DORMA Automatic GmbH + Co. KG KT-Systeme
- DORMA Beschlagtechnik GmbH
- DORMA-Glas GmbH
- DORMA GlasTec GmbH
- DORMA Hüppe Raumtrennsysteme GmbH + Co. KG
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- GLAMÜ Vertrieb von Duschsystemen und Sanitärartikeln GmbH
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- DORMA foquin N.V./S.A.
- DORMA Nederland B.V.
- DORMA Schweiz AG