Effective January 1, 2012
1. Scope of application
1.1 These general terms and conditions (GT&C) shall apply to all business relationships of TORDA GmbH (below referred to as TORDA) with its clients (below referred to as clients), whereas the client is an entrepreneur (see Section 14 BGB – German Civil Code), a legal person under public law or a special fund under public law.
1.2 The GT&C shall particularly apply to the contracts of sales and/or delivery of movable objects, irrespective of whether TORDA produces the goods themselves or purchases them from suppliers. The GT&C in their respective version shall be applied as general agreement also to future contracts with the same client, without TORDA needing to indicate the GT&C in each individual case.
1.3 Terms and conditions of the client or a third-party shall not apply, even if TORDA does not raise objections to their validity in each individual case. Even if TORDA should refer to a letter containing terms and conditions of the client or a third party, this shall not indicate agreement to the validity of said terms and conditions.
1.4 TORDA shall be allowed to use third parties to fulfill their commitments. These GT&C shall also apply in their latest version with respect to these relationships.
2. Offers, conclusion of a contract
2.1 All offers and pricings by TORDA, e.g. brochures, ads and other advertising material are subject to confirmation and non-binding, unless they have been explicitly marked as binding or contain a fixed period for acceptance.
2.2 Any order of a product by the client shall be regarded as a binding offer to conclude a contract. Unless the order indicates differently, TORDA shall reserve the right to accept this offer of contract within three weeks after it has been sent. The date on which TORDA’s declaration of acceptance is received by the client shall be decisive of meeting the deadline.
2.3 Acceptance is declared either in writing (e.g. by order confirmation) or by handing over the goods to the client.
3. Quality, models, samples, raw material wood
3.1 Unless explicitly agreed in writing as quality of the goods, all models, samples or any other details shall be nonbinding.
3.2 Details provided by TORDA pertaining to the delivery and/or performed work (e.g. coloring, weights, measurements, practical value, stress resistance, tolerance and technical data) as well as corresponding illustrations shall be regarded as approximations. They shall not be regarded as guaranteed properties of quality, but only as a description and characterization of the delivery and performed work. Customary deviations shall be regarded as possible and permitted.
3.3 TORDA shall reserve its ownership rights and/or copyright with respect to all its issued offers and cost estimates as well as any drawings, illustrations, calculations, brochures, catalogs, models, tools and any other document and auxiliary material provided to the client. The client shall not disclose, publish, utilize them himself or through a third party or copy these as such nor in content to a third party, without prior written consent by TORDA. Upon request, the client shall be required to return these objects and to destroy any produced copy, if he does not require them himself any longer or if negotiations did not result in concluding a contract.
3.4 Wood is a living naturally grown material. Deviations in veneer, color and/or structure are unavoidable. Minor deviations can even occur within the same veneer trunk. As a result, deviations in color between color sample and the actual delivered door are possible. These deviations emphasize the genuineness of the wood and correspond to the natural quality of the raw material.
The raw material wood is able to bind moisture from the environment and dispense moisture when the temperature changes. As a result of this property of wood, hair-line cracks may occur, particularly in products treated with color varnish or polishing varnish. Any occurrence of the afore-mentioned hair-line cracks corresponds to the natural quality of the raw material.
4. Deadlines and agreed dates, force majeure, default by TORDA
4.1 Any prospective deadlines and agreed dates by TORDA shall be nonbinding, unless a fixed deadline or a fixed date has been explicitly agreed to in writing. Any fixed deadlines and dates agreed to in writing regarding the shipment of the goods shall refer to the moment of hand-over of the goods to the transportation company or any third party charged with the transport.
4.2 Force majeure of any kind, in particular unforeseeable operational, traffic or shipment interference, fire, explosion, natural disasters, high or low waters, unforeseeable lack of manpower, energy, raw materials or auxiliary materials, strike, lockout, war, political unrest, acts of terrorism, official decrees or other obstacles beyond the control of TORDA, which hinder or render unreasonable the delivery of services, the availability of the goods or the acceptance or its shipment, shall release TORDA from their duty to deliver the services for the duration and the scope of the obstacle. Should the event of force majeure continue for more than six weeks, then in the event of significant interference, TORDA shall be entitled to revoke the contract. In the event of temporary interferences, any fixed deadline and agreed date shall be extended by the period of time of the interference plus an appropriate restart time.
4.3 In the event of TORDA being in default of the delivery or a work performed or should it become impossible for TORDA to deliver the goods or a work performed, then the liability of TORDA for indemnification shall be limited to the stipulations of Article 11 irrespective of the reason.
5. Prices, payment terms (advance payment), default by the client, revocation
5.1 The prices shall apply to the scope of services and delivery as described in the order confirmation. All prices mentioned shall be in EURO plus applicable legal value added tax plus, in the event of a separately agreed transport of the goods, any transport and packaging costs. The client shall bear any applicable customs duty, fees, taxes and other public charges.
5.2. Unless explicitly agreed upon in writing in exceptional cases, TORDA shall deliver goods only upon advance payment. The full purchase price and/or full remuneration shall be due upon invoicing but prior to the manufacturing of the goods or, in the event of already manufactured goods, prior to shipping the goods.
5.3 Should it become evident after concluding the purchase contract, that TORDA’s claim to the payment of the purchase price or the remuneration is at risk due to the lack of performance on the client’s side – e.g. by filing for the opening of insolvency proceedings – TORDA shall be entitled as stipulated by applicable law to deny any services and, after imposing a final deadline, to revoke the contract (see Section 321 BGB – German Civil Code). In the event of the manufacturing of non-fungible goods (custom manufacture), TORDA may declare the revocation immediately; any legal regulation pertaining to the expendability of imposing a deadline shall remain unaffected.
5.4 In the event of the client defaulting on the payment, TORDA shall retain the right to charge default interest at the statutory rate.
6. Place of fulfillment, shipping, passing of risk, storage costs, insurance
6.1. The goods shall be delivered ex works or ex stock.
6.2 Upon express written request by the client, the goods may be delivered at his expense to a different destination (sales shipment). Unless explicitly agreed otherwise in writing, TORDA shall be entitled to define the type of shipment (in particular transport company, shipment route and packaging) by itself.
6.2 The risk of accidental destruction and accidental deterioration of the goods to be delivered shall pass to the client no later than upon handover of the goods. In the event of a sales shipment, the risk of accidental destruction and accidental deterioration of the merchandise as well as the risk of delay shall pass to the client upon handover to the transport company of the goods to be delivered (whereas the beginning of the loading process shall be the decisive factor) or any other third party charged with the execution of the transport. This shall apply also to partial shipments.
6.3 In the event of the shipment or handover of the goods being delayed due to reasons under control of the client, then the risk shall pass to the client on that day on which the goods to be delivered are ready for shipment and TORDA has notified the client of this.
6.4 Storage costs after passing of risk shall be borne by the client. In the event of storage by TORDA, the storage costs shall amount to 0.50 percent of the invoiced amount of the goods to be stored for each elapsed week. The right to claim and to prove any additional, higher or lower storage costs shall be retained.
6.5 TORDA shall insure the shipment only upon express written request and at the expense of the client against any insurable risk desired by the client.
In the event of justified doubts regarding the client’s solvency, in particular in the event of arrears of payments, TORDA shall be entitled, subject to any additional claims, to revoke any conceded payment terms as well as place any additional services under the condition of advance payments or concession of other securities.
8. Retention of title
8.1 TORDA shall retain the ownership rights of the sold goods until full payment of all current and future receivables incurred by TORDA against the client from the on-going business relationship (secured receivables).
8.2 The goods under retention of title (below referred to as “retained goods”) may only be pawned or assigned as security to a third party after full payment of the secured receivables. In the event of seizure of the retained goods by a third party – in particular a marshal –, the client shall indicate the ownership rights of TORDA and notify TORDA immediately, so that TORDA shall be enabled to enforce its ownership rights.
8.3 In the event of a breach of contract by the client, TORDA shall be entitled according to Article 5.3 and the legal regulations to revoke the contract and request the return of the goods as a result of the retention of title and the revocation of the contract. Should the client not pay the purchase price or the remuneration as due, TORDA shall request the surrender of the retained goods only, if TORDA has unsuccessfully imposed a deadline on the client or if imposing such a deadline is legally expendable.
8.4 The client shall be entitled to resell and/or process the goods under retention of title within his proper business scope. In this event, the following regulations shall apply.
a) The retention of title shall be extended to include the products resulting from processing, intermixture or connecting the retained goods, to the full extent of their value, whereas TORDA shall be regarded as manufacturer. In the event of goods remaining the property of any third party when processing, intermixing or connecting these goods, then TORDA shall acquire a co-ownership of these goods in proportion to the invoiced values of the processed, intermixed or connected goods. Apart from this, the same shall apply to the resulting products as to the retained merchandise.
b) The client shall at this point already assign to TORDA any third-party receivables resulting from reselling the goods or the product to the full extent or in the amount of any existing co-ownership by TORDA, to serve as security according to the aforementioned article. TORDA shall accept this assignment. The client’s duties mentioned in Article 8.2 shall also apply in view of the assigned receivables.
c) Aside from TORDA, the client shall remain to be entitled to collect the receivables. TORDA shall commit to not collecting the receivables, while the client is still satisfying the payments due TORDA, is not defaulting, does not file for the opening of insolvency proceedings and no other deficiency in the client’s performance becomes obvious. In the event of any of these coming true, TORDA shall be entitled to request the client to disclose the assigned receivables and the respective debtor to TORDA, to disclose any information needed to collect the receivables, to hand over all corresponding documents and to notify the debtor (third party) of the assignment.
d) In the event of the value of the securities exceeding the client’s total liabilities to TORDA by more than ten percent, then TORDA shall, upon request by the client, release securities in the appropriate amount – to TORDA’s choice.
9. Duty of inspection and notification of defects, rights in the event of defects, statute of limitations
9.1 The client shall inspect the goods immediately after reception and indicate any defect immediately but no later than seven working days after receiving the goods – hidden defects immediately after recognition – in writing.
9.2. In the event of the client neglecting to notify TORDA as mentioned in Article 9.1 or the goods being intermixed, consumed or sold, then this action shall be regarded as acceptance without reserve.
9.3 In the event of justified and timely notification of defect as to quality, then TORDA shall be entitled to initially offer the client a price reduction. Should the client refuse this reduction, then TORDA shall be entitled to either cure by way of correcting the defect (rectification of a defect) or by way of supplying defect-free goods (replacement delivery). TORDA’s right to refuse the selected type of cure according to the legal requirements shall remain unaffected.
9.4 The general term of statute of limitations for claims by the client resulting from defects of quality and defects of title shall be one year starting on the date of delivery, or, in the event of a required approval, starting on the date of approval.
9.5 Any claims by the client for indemnification or reimbursement of expenditures spent in vain, shall exist only as stipulated in Article 10 and shall be excluded in any other event.
10. Exclusion and limitation of liability, revocation, termination
10.1 In the event of these GT&C, including any of stipulations below, not indicating otherwise, then TORDA shall only be liable when breaching any contractual and non-contractual duties according to applicable legal regulations.
10.2 TORDA shall only be liable to indemnification, irrespective of the legal basis, when acting by intent or gross negligence. TORDA shall only be liable in the event of ordinary negligence
a) for damages resulting from injury to the life, body or health,
b) for damages resulting from breaching an essential contractual duty (any duty, which will allow the contract to be properly executed only if adhered to and in which’s adherence the contract partners shall trust on a regular basis and may trust in); in this event, liability shall limited to the indemnification of a foreseeable, typically occurring damage.
10.3 The limitations of liability resulting from Article 10.2 shall not apply in the event of TORDA maliciously concealing a defect or accepting a guarantee for the quality of the goods. Liability according to the German Product Liability law shall remain unaffected.
10.4 Insofar as TORDA’s liability is excluded or limited, the same shall apply to the liability of its employees, representatives and vicarious agents.
10.5 The client may only revoke or terminate the contract as a result from the breaching of duty not pertaining to a defect, if TORDA is responsible for this breach of duty. A free right of termination (in particular according to Sections 651, 649 BGB – German Civil Code) shall be excluded. Apart from this, all legal requirements and legal consequences shall apply.
11. Legally binding declarations
Legally binding declarations and notifications, provided by the client to TORDA after concluding the contract (e.g. imposing deadlines, notifications of defect, revocation or termination) must be given in writing to be effective.
12. Offsetting, right of retention
A right to offset shall be granted to the client only, if the counterclaim has been legally determined or is not disputed by TORDA.
13. Applicable law
All legal relationships between the client and TORDA shall be governed by the laws of the Federal Republic of Germany, subject to mandatory international regulations of the private law, excluding the United Nations Convention on Contracts for the International Sale of Goods. Requirements and effects of the retention of title according to Article 8 shall be subject to the laws applicable at the respective site of storage, insofar as selecting jurisdiction in favor of German law is illegal or invalid by these laws.
14. Place of jurisdiction
Place of jurisdiction shall be the official place of business or TORDA in Seevetal (Germany). TORDA however shall be entitled to file suit at the client’s general place of jurisdiction.
GENERAL TERMS AND CONDITIONS