General Terms and Conditions of Sale – Delivery and Payment – FFAZ:
Unless otherwise explicitly stated, the deliveries and services of the company FFAZ GmbH (supplier) are exclusively based on the following conditions. Even if they are not explicitly specified a second time, these conditions apply to all future business relationships. Any deviating terms and conditions of the customer are hereby formally rejected. The supplier’s terms and conditions shall also apply in cases where the delivery to the purchaser is executed without precondition and in the knowledge of the purchaser’s contrary or deviating terms and conditions.
2 Offers and conclusion of contract
- The supplier’s offers are in any case subject to change without notice. These are merely requests for the placing of offers by the customer.
- The order placed by the customer is a binding offer. The supplier may, at his own discretion, accept or reject this offer within four weeks by sending a written order confirmation (also by fax or e-mail). If an immediate delivery is made, the invoice shall be considered as order confirmation at the time of order.
- The Supplier reserves the right of ownership, copyright and the rights arising from the Patent and Utility Model Law. They are only entrusted for the purpose of the respective offer and may not be reproduced in part or made available to third parties without the explicit consent of the supplier.
3 Data storage and processing
The Purchaser is hereby informed that the Supplier processes the personal and company data obtained within the scope of the business relationship in accordance with the provisions of the Federal Data Protection Act.
4 Pricing and payments
- Unless explicitly stated otherwise in the order confirmation, the prices quoted are “ex warehouse quantities”. In addition, the value-added tax at the respective legal rate, other country-specific information in the case of deliveries abroad as well as costs for customary transport packaging, other shipping expenses, delivery costs, etc. will be added to the prices. Further additional charges are to be paid by the customer, unless mandatory legal regulations contradict. The supplier is entitled to demand the reimbursement of out-of-pocket freight and other expenses immediately. The supplier reserves the right to raise prices considerably if, after concluding the contract, there are increases in costs, in particular due to wage negotiations or increases in material prices, and if there are at least four months between the conclusion of the contract and the intended delivery.
- If not explicitly stated otherwise, the customer is obliged to pay the purchase price in advance or by mutual agreement. If this has not been done, he shall be in delay from this point in time without further prerequisites. Any bank charges shall be paid by the customer. From the time of default, the supplier shall be entitled to demand default interest at a rate of 8% above the base interest rate. If the supplier is in the position to prove a higher damage caused by delay, he is entitled to pursue this claim. However, the Purchaser shall be entitled to prove to the Supplier that no damage or substantially less damage has arisen as a result of the delay in payment.
- If a customer is in delay of payment, all other claims become due immediately if the customer cannot prove that he is not responsible for the delay.
- The Purchaser shall only be entitled to set-off rights if his counterclaims have been legally ascertained, are undisputed or accepted by the Supplier.
- The supplier is entitled, despite differing terms and conditions of the purchaser, to offset payments against his older debts. If costs and interest have already been caused, the Supplier shall be entitled to set off the payment first against the costs, then the interest and finally against the main service, even if the Purchaser decides otherwise. In the case of financial aid, the first step is offset against the main service, followed by interest and costs.
- If the supplier becomes aware of circumstances which question the solvency and creditworthiness of the purchaser, in particular if he does not honour a cheque, suspends his payments or if he becomes aware of the filing of an application for insolvency procedures, the supplier is entitled to demand payment of the entire invoice, even if checks have been accepted in advance. In this case, the supplier may also demand advance payments and a security deposit. The same shall apply in the event of late payment of an earlier delivery. Agreed discounts shall not be granted if there is a outstanding balance in favour of the supplier at the time of payment. If the above-mentioned circumstances are known or an application for insolvency proceedings has been filed, the supplier is entitled to withdraw from all orders after setting a reasonable deadline. In the event of cancellation, the Purchaser shall compensate the Supplier for any expenses proven to have been caused. This does not affect the claim for the fulfilment of further claims for damages.
5 Condition of a sold item
- The quality and properties of the product are specified in the brochures, hazardous substance sheets and other specific descriptions of the products, which can be inspected on request from the supplier or sent out at any time. The mentioned duties are neither assured nor guaranteed, unless explicitly confirmed in written form. The supplier is explicitly not liable for false statements of the pre-suppliers.
- The quality of the products will deteriorate in the event of incorrect or non-existent maintenance. The instructions for maintenance which are communicated to the customer must therefore always be followed.
- Customary deviations from drawings, illustrations, dimensions and weights and other performance data are allowed expressly reserved and can be carried out by the supplier at any time without prior notice.
6 Delivery times
- Delivery times shall be ex works and do not start before receiving the documents to be provided by the customer. A delivery deadline shall be regarded as met if the order is ready for shipment within the term of delivery and the customer has been notified of this fact or if the order leaves the supplier’s warehouse.
- In the event of circumstances of higher force or other unforeseeable or other circumstances beyond the control of the supplier, such as non-delivery by the pre-supplier, breakdowns due to fire, water and similar circumstances, breakdown of production facilities and machines, transport options, intervention by authorities (even if they occur with pre-suppliers), the supplier, if he is not responsible of being hindered to fulfil his service, shall be entitled to postpone delivery beyond the duration of the hindrance. The customer shall in any case be entitled to grant the supplier a reasonable written deadline of at least fourteen days if the supplier exceeds the agreed delivery date by more than fourteen days. If the extension period expires without result, the customer shall be entitled.
- The supplier is entitled to provide partial performances to a reasonable extent before expiry of the delivery period. Partial deliveries and invoices for functional units are allowed.
- If the shipment of the order is delayed due to circumstances for which the supplier is not responsible, the supplier is entitled to charge a storage fee of 0.5% of the invoice amount for each started month. Further claims remain unaffected.
- In the case of orders with no agreement on delivery time, production lot sizes and receiving dates, the supplier may demand a binding specification no later than 3 months after the order confirmation. If the Purchaser does not fulfil this demand within three weeks, the Supplier shall be entitled to set a two-week extension period and to withdraw from the contract after its expiry and or to claim damages.
- If the Purchaser fails to fulfil his obligations to accept the delivery, the Supplier shall, without being affected by any other rights, not be bound by the regulations on self-help sales, but shall be entitled to sell the Supplies freehand after prior notification of the Purchaser.
7 Transfer of risks
- Insofar as no delivery obligation has been agreed, the risk shall be transferred to the customer as soon as the goods have been handed over to the forwarding agent carrying out the transport or have left the supplier’s warehouse for the purpose of dispatch. This shall apply irrespective of whether the supplier carries out the shipment with company-owned vehicles or whether third-party shipping companies are used and irrespective of which contracting party is responsible for the shipping costs.
- If dispatch is delayed for reasons for which the customer is responsible, the risk shall pass to the customer on the day on which the goods are delivered.
8 Liability of defects
- The purchaser’s warranty claims require that the purchaser has properly fulfilled his obligations to inspect and report defects in accordance with §377 HGB (German Commercial Code). The customer shall notify the customer in written notice of obvious defects which are visible upon proper inspection within 8 days after handover. The purchaser is obliged to provide the supplier with a detailed written description of the defects claimed by him. The customer must notify us in written notice of defects that are not obvious and not recognizable in a proper inspection within 8 days after discovery. If the complaint period is not met, a warranty for the affected defects cannot be considered.
- The supplier does not warrant for damages and malfunctions, which are in particular due to natural wear and abrasion, faulty installation or commissioning by the purchaser due to improper use and operating mistakes, faulty or unsuitable power supply, operation with incorrect current type or voltage, fire, lightning strike, explosion, humidity and failure to carry out necessary or recommended operating or maintenance work. Likewise, no warranty is given if parts are replaced or consumables are used that do not correspond to the original specification.
- The supplier provides a warranty for the product’s freedom from defects for a period of 1 year from delivery. In the event of a defect, the supplier shall initially be entitled to choose whether to rectify the defect or to deliver a damaged item. The purchaser reserves the right to reduce the price of supplementary services in case of failure or to withdraw from the contract at his own decision. A failed repair is when two attempts at repair fail. Any further-reaching claims, in particular claims for reimbursement of expenses or claims for damages due to defects or consequential damages resulting from defects, shall only exist within the framework of the provision in §8.
- Insofar as the purchaser is obliged to claim the rights to set a reasonable period of time in which the supplier must fulfil his obligations, the deadline is only reasonable if it is not shorter than 20 days. The supplier is entitled to refuse subsequent performance if it is only possible with unreasonable costs. Costs are unreasonably high, especially if the total expenses for subsequent service are higher than 30% of the market price of the sold goods. The further rights of the customer remain unaffected.
- The supplier shall bear any expenses necessary for the purpose of repair, in particular transport, travel, labour and material costs, insofar as these are not increased by the fact that the item has been taken to a location other than the place of delivery. Replaced parts shall become the property of the supplier.
- If the defect cannot be detected or if the defect is acknowledged to be unjustified, the Purchaser shall bear the costs of the examination.
- Warranty claims against the supplier are only valid for the direct purchaser and are not transferable.
- In the case of minor defects, the customer shall not be entitled to withdraw from the contract, and he shall also be obliged to accept the delivery.
- Refund claims according to sections §§ 478, 479 and 479 of the German Civil Code (BGB) only exist if the consumer’s claim was legitimate and only to a legal extent, but not for short terms that have not been agreed on with the supplier. The supplier shall not be liable in accordance with §§ 478, 479, BGB if the purchaser has supplied to foreign countries and has thereby concluded the validity of the UN Convention on Contracts for the International Sale of Goods.
- Unless otherwise stated in these terms and conditions, the supplier shall only be liable for damages due to infringement of any contractual, non-contractual and legal obligations in the event of willful misconduct or gross negligence. This shall also apply to violations of obligations by the legal representatives and vicarious agents of the supplier. The amount of any possible claims for compensation is limited to the extent of the foreseeable damage. The supplier shall not be liable for damage that has not occurred to the delivered item itself; in particular, the supplier shall not be liable for loss of profit or other financial losses of the purchaser.
- The above mentioned limitation of liability with the aforementioned restriction shall also apply to claims arising from culpa in contrahendo. Violation of collateral obligations and in particular for claims arising from the producer’s liability pursuant to § 823 BGB.
- The purchaser can only demand compensation for damages in place of services in the event of significant breaches of duty by the supplier. The customer must prove that the sold item was defective at the time of delivery. If the customer is a consumer, this regulation does not apply. Rather, it is assumed that within 6 months of the transfer of risk it is assumed that the item was defective at the time of the transfer of risk.
- Guarantees or warranties of quality have not been given by the supplier in any way.
- If the subject of the contract is an object defined only according to the type of contract, the liability of the supplier is also determined by the above-mentioned rules here, a liability independent of any fault is excluded.
10 Preservation of the reservation of title
- All deliveries and services of the supplier are subject to retention of ownership. Ownership shall not pass to the purchaser until all claims of the supplier have been satisfied. This shall also apply if payments are made on specially designated claims. In the case of a current invoice, the reserved property shall be considered as a guarantee for the supplier’s balance claim.
- The customer is obliged to treat the purchased item with care, in particular is he obliged to insure the purchased item against fire, water and theft at his own expense at a reasonable price. Required maintenance and inspection work is to be carried out by the purchaser at his own expense in a timely and professional manner.
- The purchaser may neither pledge nor assign the delivered item to which the supplier reserves ownership as security. In the event of seizures, confiscations and other dispositions by third parties, he must inform the supplier immediately. In such a case, the purchaser must provide the supplier with the assistance necessary to assert his rights. Costs for intervention which become necessary shall be borne by the customer. If payment is suspended, the customer must also notify the supplier of the remaining product or stock.
- If the purchaser delays payment, the supplier is entitled to claim the product back and to have it picked up immediately, notwithstanding the maintenance of the contract. If the supplier asserts the retention of ownership, this shall only be valid as cancellation of the contract if the supplier expressly declares this in written form.
- The processing or modification of the reserved products shall always be carried out on behalf of the supplier. If the products are processed or inseparably mixed with other items not belonging to the supplier, the supplier shall acquire ownership of his product in relation to the invoice value of the product to be processed or mixed. The resulting co-ownership rights shall be considered as products which are subject to retention of ownership within the scope of these conditions. In the aforementioned cases, the purchaser hereby assigns his ownership rights to the supplier for the processed, combined or mixed products. The handover shall be replaced by the fact that the purchaser stores the processed, combined or mixed item for the supplier. Otherwise, the same shall apply to the item created by processing, use and mixing as to reserved products.
- The purchaser is entitled to process and sell the reserved products in the course of normal business unless he is in delay vis-à-vis the supplier, has stopped payment or insolvency proceedings have been filed against his assets. The purchaser hereby assigns to the supplier the full value of all claims against customers or third parties arising from the resale, including all rights. The supplier accepts this assignment. If goods are sold by the purchaser after they have been processed together with products that do not belong to the purchaser, the purchaser assigns to the supplier the claims arising from the resale in the amount of the value of the goods subject to retention of ownership, including all secondary rights and priority rights. The supplier accepts this assignment already now. The customer is authorised to claim this debt even after assignment. This possibility to collect the receivables themselves remains unaffected by this, however, the supplier agrees not to confiscate the receivables as long as the customer meets his payment and other obligations properly, is not in delay of payment and, in particular, as long as no insolvency proceedings have been filed, payments have been suspended or there are reasonable doubts concerning the solvency and creditworthiness of the customer. The customer is not entitled to assign the claim in any other way.
- The supplier may demand that the customer notifies the supplier of the assigned claims and their debtors, provides all information necessary for collection, hands over the associated documents and notifies the debtors of the assignment. Any bills of exchange given by third party customers shall be transferred to the supplier.
- If the value of the guarantees to which the supplier is entitled exceeds the total claim against the customer by more than 20%, the supplier is obligated to release the guarantees at the choice of the supplier at the purchaser’s request. If the supplier takes back products in mutual agreement, their credit shall only be given in the respective current value.
11 Legal Venue – Applicable Law – Place of Fulfilment
- The legal terms of the contract are subject to the laws of the Federal Republic of Germany.
- The business location of the supplier Mengen/Württemberg shall be the place of performance for all obligations arising from the terms and conditions of the contract for deliveries, including freight-free deliveries.
- The place of jurisdiction, also in the case of legal claims based on bills of exchange and cheques, shall be the registered office of the supplier Mengen/Württemberg, if the customer is an entrepreneur or a legal entity under public law. Mengen/Württemberg as place of jurisdiction shall also apply if the customer has no general place of jurisdiction in Germany or if he transfers his domicile or habitual residence abroad after conclusion of the contract. In any case, the supplier may sue the purchaser at his registered office.
12 Preservation of industrial property rights
- If the supplier has to deliver according to design, models, samples or pledged parts provided by the purchaser, the purchaser guarantees that third-party industrial property rights are not violated in the country of delivery. The purchaser shall inform the supplier of all known rights. The purchaser has to release the supplier from claims of third parties and pay compensation for the damage caused. If the supplier is prohibited from manufacturing or delivery by a third party on the basis of an industrial property right belonging to him, the supplier is entitled to suspend the work until the legal situation has been clarified by the purchaser and the third party without checking the legal situation. If the supplier is no longer able to continue the order due to a delay, he is entitled to withdraw from the contract.
- In the event of a failed order, the drawings provided to the supplier will be returned on request, otherwise the supplier is entitled to destroy them after three months after the offer has been made. This obligation applies to the purchaser accordingly. The party entitled to destroy must inform the contractual partner in a timely manner in advance of his intention to destroy the document.
- The supplier shall be entitled to the copyrights and, if applicable, industrial property rights, in particular all rights of use and exploitation of the models, forms and devices, drafts, drawings and the delivered product on behalf of a third party.
13 Severability clause
Should a provision in these terms and conditions of business be or become invalid, this will have no effect on the validity of all other provisions or agreements. The invalid term shall be replaced by a valid agreement which comes closest to the economic purpose of the defective term.