(hereinafter "general terms and conditions") of TOTO Europe GmbH (hereinafter "TOTO Europe”)
Version: September 2018
1. Validity of terms and conditions, written form
1.1 TOTO Europe delivers its goods exclusively on the basis of these general terms and conditions.
1.2 These general terms and conditions also apply to all future contracts between TOTO Europe and the buyer even if they are not separately agreed again. They replace all terms and conditions that were previously agreed between TOTO Europe and the buyer.
1.3 Terms and conditions of the buyer that are contrary to or deviate from these general terms and conditions are not part of any contract between TOTO Europe and the buyer. TOTO Europe expressly rejects their applicability. This also applies if TOTO Europe carries out an order without reservation whilst being aware of contrary or additional terms and conditions of the buyer. TOTO Europe equally does not accept terms and conditions even if TOTO Europe refers or replies to correspondence that contains terms and conditions of the buyer or a third party or that makes reference to such.
1.4 Separate agreements, additions, modifications and supplementary agreements only apply if confirmed by TOTO Europe in writing.
1.5 “Entrepreneur” in terms of these general terms and conditions means a natural or legal person or a partnership with legal personality who or which, when entering into a legal transaction, acts in exercise of his or its trade, business or profession. “Consumer” in terms of these general terms and conditions means every natural person who enters into a legal transaction for a purpose that is outside his trade, business or profession.
2. Offer and conclusion of contract
2.1 Offers of TOTO Europe are not binding and subject to change. TOTO Europe reserves the right to make technical changes and changes in shape, color, and/or weight to goods already ordered; any such changes will be within reasonable limits.
2.2 TOTO Europe can accept a contract offer made through an order by means of an order confirmation within two weeks following receipt of such order. The order confirmation can be made in writing, by telefax or by e-mail. Confirmation of receipt of an order does not constitute a binding acceptance of such order.
3. Delivery time, time of performance, force majeure
3.1 Except in cases where delivery times and/or times of performance have been agreed as “fixed” expressly and in writing, delivery times and times of performance stated by TOTO Europe are to be understood as indicative, non-binding, subject to change and subject to self- supply.
3.2 TOTO Europe may render partial performances unless such partial performance is not of interest for the buyer.
3.3 Insofar as a delivery delay or delivery time was agreed as “fixed”, it refers to the time of transfer to the carrier or freight forwarder or to other companies charged with the transport of the goods. In all other cases, delivery delays and deadlines are deemed to have been observed if TOTO Europe was in a position to dispatch the goods in time, insofar as this ability to dispatch was communicated to the buyer.
3.4 If, with respect to TOTO Europe, circumstances prevail, for which TOTO Europe is not responsible and which make performance substantially more difficult or impossible, then TOTO Europe is entitled to rescind the contract insofar as the hindrance is not only of a temporary nature. In the event of goods being unavailable, TOTO Europe will without undue delay (“unverzüglich”) (i) inform the buyer and (ii) return any payments already received. In the case of temporary obstacles the delivery period will be extended by the length of time for which the obstacle exists.
3.5 If (i) TOTO Europe has failed to meet a deadline, and (ii) the buyer sets an appropriate additional delay for delivery or performance, it is entitled, after this period has expired to no avail, to rescind the contract. In this case, statutory claims apply to both the consideration for TOTO Europe and the claims of the buyer, but only within the limits set in Section 8 below.
4. Dispatch and transfer of risk
4.1 All goods are dispatched from the point of dispatch as specified in the order confirmation and for the account of the buyer.
4.2 If the buyer is an Entrepreneur, the risk of accidental loss or accidental deterioration of the goods passes to the buyer when the object for delivery is handed over to the carrier or freight forwarder or to other companies charged with carrying out the dispatch. This also applies to partial deliveries. If the buyer is a Consumer, the risk of accidental loss or accidental deterioration of the goods does not pass to the buyer until the object for delivery is handed over to the buyer. This also applies to partial deliveries.
4.3 Buyer’s delay in accepting goods shall have the same legal consequences as the handing over of the goods.
4.4 If delivery or dispatch is not made for reasons that lie outside the responsibility of TOTO Europe, the risk of accidental loss or accidental deterioration of the goods will pass to the buyer as soon as TOTO Europe reports to the buyer its readiness to deliver.
4.5 Dispatch is made without insurance, using a freight forwarder selected at the discretion of TOTO Europe (e.g. German Postal Service (“Deutsche Post”) / DHL, parcel services, rail or hauler). An agreement made exceptionally to deliver with carriage paid only covers normal freight.
5. Prices and payment
5.1 The prices from the price list of TOTO Europe that is valid on the day the order is placed apply. The rate of Value Added Tax applicable at such time as well as the costs for packaging and delivery are not included in these prices.
5.2 Invoices of TOTO Europe are payable net without deductions immediately after invoicing. TOTO Europe can make deliveries dependent on advance payments or the deposit of security. If the payment period is exceeded, the buyer is in arrears (“Verzug“), without a reminder (“Mahnung”) being necessary. TOTO Europe can, at its discretion, set off payments of the buyer against costs, interest and debts of the buyer, and will in this case inform the buyer about the way in which such set-off is being carried out.
5.3 The buyer only has a right of set-off payment if its counter-claims (i) have been confirmed by final and irreversible judgment of a court, or (ii) are undisputed or are recognized by TOTO Europe in writing.
5.4 The buyer can only invoke a right of retention on the basis of its own counter-claims if the counter-claims relate to the same contractual relationship. If the buyer is an Entrepreneur, a right of retention on the basis of its own counter-claims is excluded.
6. Retention of title
6.1 The transfer of title in delivered goods (hereinafter: “Reserved Goods”) only occurs when the purchase price has been paid in full. If the buyer is an Entrepreneur, TOTO Europe retains title in delivered goods until all of its claims against the buyer arising out of the current business relationship have been met in full. The buyer is entitled to process and to sell the Reserved Goods in proper business dealings as long as it is not in arrears (“Verzug”). The buyer may not impawn (“verpfänden”) unpaid goods or transfer title in unpaid goods by way of security. All claims arising from the resale or based on any other legal grounds in respect of the Reserved Goods (including all current account receivables) are hereby assigned to their full extent by the buyer to TOTO Europe by way of security. TOTO Europe grants the purchaser revocable authorization to collect in its own name for the account of TOTO Europe the claims assigned to TOTO Europe. This authorization to collect claims can be revoked if the purchaser does not fully comply with its payment obligations.
6.2 To the extent the value of the security mentioned above exceeds the claims of TOTO Europe by more than 10% in total, TOTO Europe will return the excessive securities upon request.
6.3 If third parties seize the Reserved Goods, the buyer will advert such third parties to the fact that the Reserved Goods are property of TOTO Europe and will notify TOTO Europe without undue delay (“unverzüglich”). Where the buyer fails to comply with terms and conditions of the contract - in particular in the case of payment arrears (“Zahlungsverzug”) - TOTO Europe is entitled to take back the Reserved Goods or, where necessary, to demand the assignment of the buyer’s right to possession in respect of third parties. The buyer is liable jointly and severally with the third party for the reimbursement of the court and out of court costs of legal action pursuant to § 771 German Code of Civil Procedure (“Zivilprozessordnung – ZPO”) or any provision of similar import applicable.
6.4 The repossession (“Zurücknahme”) or the attachment (“Pfändung”) of the reserved goods by TOTO Europe does not in itself constitute a rescission (“Rücktritt”) from the contract.
7.1 TOTO Europe will perform its contractual obligations with the diligence of a prudent merchant (“ordentlicher Kaufmann”) and with due regard to the applicable norms and stipulations. Claims made by the buyer in respect of defects are only valid if it has properly observed its due obligations to check and complain under § 377 of the German Commercial Code (“Handelsgesetzbuch – HGB”).
7.2 If the buyer is an Entrepreneur, the warranty period is one year counting from when the goods are delivered. If the buyer is a Consumer, the warranty period is two years, for second hand goods one year counting from when the goods are delivered.
7.3 TOTO Europe points out that any deterioration of goods through their intended use will not trigger any warranty claims.
7.4 Apart from this, the statutory rules of warranty apply subject to the proviso that TOTO Europe may, in its discretion, either repair or replace defective deliveries or services. The buyer is only entitled to exercise its further statutory rights if (i) two attempts by TOTO Europe to repair or replace have failed or (ii) such supplementary performance has been refused by TOTO Europe or has not been carried out in an appropriate way; however, even then, only within the limits set in Section 8 below.
8.1 TOTO Europe is liable for intent or gross negligence. For slight negligence, TOTO Europe is only liable if it culpably fails to fulfill an essential contractual obligation (“wesentliche Vertragspflicht”), whereas the liability is limited to the damage that is predictable and would typically occur.
8.2 The mere delivery of defective goods as such does not constitute a failure to fulfill essential contractual obligations (“wesentliche Vertragspflichten”).
8.3 Further liability - irrespective of the legal nature of the claim made - is excluded. This applies particularly to claims based on violations of contract or tort.
8.4 TOTO Europe is not liable for consequential damages (“Folgeschäden”), particularly due to lost profits or intangible damages (“immaterielle Verluste”).
8.5 Claims for damages against TOTO Europe are statute-barred one year after delivery of the goods, unless TOTO Europe is charged with intent or gross negligence. The statute of limitations for claims based on tort remains unaffected by this.
8.6 Liability due to culpable harm to life and limb remains unaffected. This also applies to mandatory liability in accordance with the German Product Liability Act (“Produkthaftungsgesetz”).
8.7 Insofar as the liability of TOTO Europe is excluded or limited, this also applies in respect of the personal liability of employees, staff, fee-lancers, representatives and agents of TOTO Europe.
9. Cooperation in Tax Matters
The buyer shall cooperate with TOTO Europe in all matters concerning tax in regard of the agreements entered into between the buyer and TOTO Europe.
10. Data Protection
10.1 For the initiation, conclusion, execution and unraveling of a purchase contract, TOTO Europe will process data on the basis of the European General Data Protection Regulation (GDPR) for the purpose of contract performance or to conduct pre-contractual measures. The legal basis for this is Article 6(1) Letter b of the GDPR.
10.2 TOTO Europe assures that personal data of the employees of the buyer will not be transferred to third parties, unless TOTO Europe is required to do so by law or if the employees of the buyer expressly grant their consent in advance (Article 4 Number 11 of the GDPR pursuant to Article 7 of the GDPR). TOTO Europe will only use third-party services to perform data processing in compliance with the European General Data Protection Regulation. The personal data transmitted by the buyer to TOTO Europe during order submission or by email (e.g., name or contact details) will only be processed for correspondence with the employees of the buyer and only for the purposes for which the employees of the buyer provided their data to TOTO Europe. The legal basis for this is Article 6(1) Letters a & b of the GDPR.
10.3 TOTO Europe will only transfer data concerning the employees of the buyer to the service provider or shipping company commissioned for the delivery and only if doing so is necessary for the delivery of the goods. The legal basis for this is Article 6(1) Letter b of the GDPR. For payment execution, TOTO Europe will transfer the payment details of the buyer to the bank commissioned for the payment. The legal basis for this is Article 6(1) Letter b of the GDPR. Personal data submitted to TOTO Europe through its website will only be saved for as long as necessary for the purposes for which the data is processed (Article 5(1) Sentence 1 Letter e of the GDPR). If storage periods under commercial or tax law apply, the storage duration may last up to 10 years.
10.4 The employees of the buyer have the right to access (Article 15 of the GDPR), the right to rectification (Article 16 of the GDPR), the right to erasure (Article 17 of the GDPR), the right to restriction of processing (Article 18 of the GDPR), the right to object (Article 21 of the GDPR) and the right to data portability (Article 20 of the GDPR). Furthermore, the employees of the buyer have the right to lodge a complaint to a competent data protection supervisory authority (Article 77 of the GDPR pursuant to Section 19 of the new version of the German Federal Data Protection Act [Bundesdatenschutzgesetz neue Fassung, BDSG-neu). In case of questions about the processing of personal data concerning the employees of the buyer or about the exercise of data subject rights, the employees of the buyer may contact TOTO Europe. For more information on how TOTO Europe processes data concerning the employees of the buyer, please see: Information regarding the handling of your data as employees of the customer
11. Applicable law, place of jurisdiction, severability
11.1. Applicable law for these general terms and conditions and all legal relationships is the law of the Federal Republic of Germany, with the exception of the UN Convention on Contracts for the International Sale of Goods. Place of performance for deliveries and payments is Düsseldorf, Germany. As far as the buyer is an Entrepreneur, the exclusive place of jurisdiction for the buyer for all disputes resulting directly or indirectly from or in connection with the contractual relationship is Düsseldorf, Germany. The same applies if the buyer does not have a place of jurisdiction in Germany or if its place of residence or habitual abode is unknown at the time of the legal action. TOTO Europe reserves the right to take legal action against the buyer at his place of residence, his registered business address or where a branch office is located.
11.2 The statutory place of jurisdiction for default proceedings ("Mahngerichtsstand") remains unaffected.
11.3 Should a provision in these general terms and conditions or a provision within the context of other agreements with the buyer be or become invalid, the validity of all other provisions in these general terms and conditions or other agreements is, in cases of doubt, unaffected.