General terms and conditions of sale, delivery and payment
1.1 Our terms and conditions of delivery and payment shall apply exclusively to the entire business relationship with our buyers. We do not recognize any deviating or supplementary conditions of the buyer unless we have expressly agreed to their validity in writing. Our terms and conditions of delivery and payment shall also apply exclusively if we carry out the delivery without reservation despite conflicting, deviating or supplementary terms and conditions of the purchaser. Our terms and conditions of delivery and payment shall also apply to all future transactions with the Buyer even in the absence of an express agreement to this effect.
1.2 These terms and conditions shall only apply vis-à-vis companies, legal entities under public law and special funds under public law.
1.3 Our travelers, sales representatives or agents have no authority to conclude contracts; agreements concluded with them shall only become binding after our written confirmation.
2. Offer and conclusion of contract
2.1 Our offers are always subject to change, unless otherwise expressly stated in the offer. Silence on offers of the buyer does not constitute acceptance.
2.2 The delivery contract shall only come into effect through our written order confirmation. If such a confirmation has not been issued, our delivery execution or the delivery bill shall be deemed to be the order confirmation. Verbal agreements require confirmation in text form by us.
2.3. after issuance of the order confirmation, a solution of the buyer from the delivery contract is excluded subject to deviating legal or contractual regulations.
2.4 The dimensions, weights, illustrations, descriptions and other details stated in our catalogs, brochures, price lists or estimates and other documents are for information purposes only and shall only become a binding part of the contract if we have expressly agreed to them in writing.
2.5 Statements of quality and durability shall only be deemed to be guarantees if they are expressly designated as such. The same shall apply to the assumption of a procurement risk.
2.6 Our written order confirmation shall be decisive for the type and scope of performance. We shall be entitled to partial performance insofar as it is reasonable for the Buyer.
3. Delivery periods
3.1 Unless otherwise agreed, the delivery period shall be determined in accordance with the information provided by us in the order confirmation. The delivery period begins with the dispatch of our order confirmation, but not before clarification of all questions necessary for the execution of the order or the provision of the advance payments to be made by the buyer on his part or before receipt of a deposit to be made by the buyer. If we supply the purchaser against advance payment, the stated delivery period shall not commence until receipt of the advance payment amount. Subsequent changes requested by the buyer will result in an interruption of the delivery period. After notification of the desired change, the period begins again.
3.2 The delivery period in the case of delivery "ex works" is met if the purchased item is sorted out and ready for shipment within the agreed period and this has been communicated to the buyer. In the case of a mail order purchase, the delivery period shall be deemed to have been met if the purchased item has been handed over to the forwarding agent within the agreed period or was ready for handover and could not be handed over through no fault of our own.
3.3 Delays in delivery and performance due to force majeure, important operational matters and due to events whose causes are beyond our control shall entitle us to postpone the delivery or performance for the duration of the hindrance plus a reasonable start-up period. This shall also apply if such events occur at our suppliers or during an already existing delay. If the impediment lasts longer than 3 months, the purchaser as well as we shall be entitled to withdraw from the contract with regard to the part not yet fulfilled. We shall inform the Buyer of the beginning and end of such impediments as soon as possible.
3.4 As long as the Buyer is in default with the payment of earlier deliveries from current business relations, we shall be entitled to refuse all services owed by us. Any costs incurred by the Buyer shall be borne by him.
3.5 Orders on call must be called off no later than 6 months after the first partial delivery. After expiry of this period, we have the right to ship the ordered goods. If the buyer is in default of acceptance or violates other obligations to cooperate, we are entitled to claim compensation for the damage incurred by us in this respect. Further claims remain reserved.
3.6 If the buyer is in default of acceptance or culpably violates other obligations to cooperate, we are entitled to compensation for the resulting damage, including any additional expenses.
3.7 If shipment, delivery or collection of the delivery item is delayed at the request of the Buyer or due to circumstances originating in the Buyer's area of responsibility, the Buyer shall reimburse us for the costs incurred due to storage as well as the costs of interest on the capital invested for the delivery item. In the event of storage by us, the claim shall amount to at least 0.5% of the outstanding invoice amount for each month or part thereof, beginning one month after notification of readiness for shipment. The proof of a respective lower damage by the buyer remains however possible. However, we shall be entitled to dispose otherwise of the delivery item after notice and fruitless expiry of a reasonable period and to make substitute performance to the Buyer with a reasonably extended period.
3.8 If we are culpably in default due to a breach of our essential contractual obligations (i.e. obligations whose fulfillment makes the proper execution of the contract possible in the first place and on whose fulfillment the contractual partner regularly relies and may rely), the damage to be compensated shall be limited to the foreseeable, typically occurring damage. In all other respects, the damages for delay to be compensated shall be limited to 3% of the delivery value for each completed week, but not more than an amount of 15% of the delivery value.
4.1 Unless otherwise agreed in writing, deliveries shall be made at the prices notified by us. The prices are ex works or ex the agreed place of dispatch, excluding packaging, customs, insurance, installation and instruction costs, shipping costs and VAT.
4.2 In the event of cost reductions or increases due to material prices or wage increases or changes occurring after the conclusion of the contract, we reserve the right to charge the price applicable at the time of delivery if delivery takes place later than 4 months after the date of our order confirmation. We shall provide evidence of the cost changes to the Buyer upon request.
4.3 We also reserve the right to recalculate in a manner reasonable for the Buyer in the event that the subject matter of the contract has been provided with technical improvements compared to the date of the contract.
4.4 For orders on call, the prices applicable on the day of delivery or when the acceptance is due shall always be charged.
4.5. in the event of shortfalls in quantities not agreed, we shall be entitled to levy surcharges to cover costs or to make discount reductions.
4.6 In case of delivery "ex works", we are entitled to invoice the goods as of readiness for delivery. In the case of a sale by delivery to a place other than the place of performance, the right to invoice shall take effect upon handover to the carrier.
5.1 Unless otherwise stated, our invoices are payable within 30 days from the date of invoice without any deduction. No discount shall be granted for invoices for development expenses, tools and operating resources. For deliveries abroad, the purchase price shall be paid immediately upon receipt of the invoice and without deduction. The timely receipt of funds in our bank account shall be decisive for justified cash discount deductions.
5.2 In case of default of payment, interest in the amount of 9 percentage points above the respective base interest rate per annum (§ 247 BGB) shall be due. We reserve the right to prove further damage caused by default.
5.3 After the unsuccessful expiry of a reasonable grace period, we shall be entitled to perform outstanding services only against advance payment or to make them dependent on the provision of security if the Buyer is in default with agreed payment terms or if circumstances exist which, when applying customary banking standards, give rise to doubts about the Buyer's ability to pay. In addition, we shall be entitled to call in our claims, irrespective of the term of any bills of exchange, and to demand securities.
5.4 The Buyer shall be entitled to exercise the right of set-off and the right of retention only in respect of its undisputed or legally established claims. Exercise of rights of retention by the Buyer is only possible if his counterclaim is based on the same legal relationship.
5.5. So-called warranty or guarantee retentions of the Buyer claimed in advance are excluded.
5.6. employees, travelers or sales representatives of our company do not have the power of collection, unless our express, written order has been given for this.
5.7. if installment payments have been agreed upon, we are entitled to make the entire remaining purchase price due for immediate payment if the buyer defaults on payment installments that exceed 10% of the total purchase price.
6. Packaging and Shipping
6.1 Packaging is done according to standard commercial aspects and at our discretion. It is disposable packaging, which is charged cheapest and will not be taken back. Reusable packaging systems are to be agreed between the manufacturer and the buyer.
6.2. in the case of mail order purchase, we shall endeavor to use the best possible shipping method from our point of view, unless a specific shipping method has been agreed.
6.3. the costs for packaging and for the transfer ex works to the place of delivery shall be borne by the buyer.
7. Scope of delivery, transport and transfer of risk
7.1 Unless otherwise agreed, delivery "ex works" is agreed in each case. Accordingly, the risk of deterioration or loss shall pass to the Buyer upon notification of readiness for shipment and separation of the purchased item. This shall also apply if we have assumed additional services such as loading, transport or unloading. If performance is delayed as a result of circumstances for which the Buyer is responsible, we shall be entitled to store the goods at the Buyer's expense and risk at our own discretion and to invoice them as delivered ex works.
7.2 If a sale by shipment has been agreed, the risk of deterioration or loss shall pass to the Buyer at the latest when the delivery item is shipped or handed over to the transport person ex works or place of shipment. If the dispatch is delayed due to the Buyer's conduct, the risk shall pass to the Buyer upon notification of readiness for dispatch. Clause 7.1 sentence 4 shall apply accordingly.
7.3 At the Buyer's request, we shall insure the respective consignment in its name and on its account against theft, breakage, transport, fire and water damage. A corresponding power of attorney shall be deemed to have been granted upon expression of the request in the aforementioned sense.
7.4 Minor short or excess deliveries for production reasons (for deliveries up to 20 pieces -/+ 1 and for deliveries over 20 pieces -/+ 5 % of the delivery quantity) shall constitute proper performance. However, the quantity delivered shall always be invoiced.
7.5 The risk of accidental loss or accidental deterioration of the purchased item shall also pass to the Buyer at the time when the Buyer is in default of acceptance or debtor's delay.
8. Retention of title
8.1 The delivered goods remain our property until the fulfillment of all our claims arising from the business relationship. This also applies to the issuance of the balance acknowledgement.
8.2 The buyer is entitled to resell the delivered goods in the ordinary course of business as long as he is not yet in default. However, he already now assigns to us all claims in the amount of the respective final invoice amount (including the statutory value added tax) of the claim, which accrue to him from the resale against his customers or third parties, irrespective of whether the delivery item has been resold without or after processing. The Buyer shall be entitled to collect the receivables until revoked. Our right to collect the claim ourselves shall remain unaffected. However, we undertake not to collect the claim as long as the purchaser meets his payment obligations from the proceeds collected, does not default on payment and, in particular, no application is made to open composition or insolvency proceedings against the purchaser's assets or there is no cessation of payments on the part of the purchaser. However, should this be the case, we may demand that the Buyer discloses the assigned claims and their debtors, provides all information required for collection, hands over the associated documents and notifies the debtors (third parties) of the assignment.
8.3 The processing or transformation of the delivery item by the Buyer shall always be carried out on our behalf as manufacturer without any obligation on our part. If the delivery item is processed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the delivery item (final invoice amount including VAT) to the other processed items at the time of processing. For the rest, the regulations for the object delivered under reservation shall apply to the object created by processing.
8.4 If the corresponding delivery item is inseparably mixed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the delivery item (final invoice amount including VAT) to the other mixed items at the time of mixing. If the mixing takes place in such a way that the Buyer's item is to be regarded as the main item, it is agreed that the Buyer shall transfer co-ownership on a pro rata basis. In all other respects, the provisions for the item delivered under retention of title shall apply.
8.5 Insofar as we had co-ownership of the sold reserved goods in accordance with the above provisions, the buyer shall assign to us his claim against the purchaser in the amount of the co-ownership share. The purchaser also assigns to us by way of security those claims against a third party which arise from the combination of the reserved goods with a property. We accept these assignments already now.
8.6 The Buyer shall not be entitled to dispose of the reserved goods or the claims replacing them in any other way. In the event of seizure or attachment of the goods subject to retention of title or the claims replacing them, the Buyer must point out our entitlement and inform us immediately so that we can protect our rights against third parties. Insofar as the third party is not in a position to reimburse us for the judicial or extrajudicial costs of legal action, the buyer shall be liable for the loss incurred by us.
8.7 The Buyer shall keep the reserved property within the meaning of the above provisions or objects replacing it in safe custody for us free of charge.
8.8 At the Buyer's request, we shall release the delivery item to the extent that our security interest has lapsed. The security interest shall cease to exist to the extent that the realizable value of the delivery item exceeds the cover limit of 110% of the secured claim not only temporarily. It shall be presumed that the cover limit is reached if the appraised value of the delivery item at the time of the request for release corresponds to 150 % of the secured claims. The proof of another realizable value of the delivery item by the Buyer remains possible.
8.9 In the event of conduct by the Buyer in breach of the contract, in particular in the event of default in payment, as well as in the event of a risk to our claims due to a deterioration in the creditworthiness of the Buyer, we shall be entitled to take back the reserved goods after the unsuccessful expiry of a grace period set by us, even if we have not withdrawn from the contract. We shall then also be entitled to sell the reserved goods on the open market or have them auctioned off. The proceeds of the sale shall be credited against the Buyer's liabilities, less reasonable costs of realization. The Buyer shall be liable for any remaining default claim.
8.10. The Buyer is obliged to treat the delivery item with care and to maintain it in perfect condition as long as ownership has not yet passed to him. The Buyer shall further insure the products delivered to him sufficiently against loss or damage by theft, fire, water and for similar cases at his own expense and for our benefit and shall provide us with evidence of such insurances upon request. To the extent that maintenance and inspection work is required, the Buyer must perform such work in a timely manner at its own expense.
8.11. We are authorized to assign claims for payment against the Buyer.
8.12. If, according to the law of the place where the delivery item is located, the retention of title or the assignment is not effective, a corresponding security shall be deemed agreed. The Buyer shall be obliged to take all measures necessary to establish and maintain such rights.
9. Warranty, obligations of the buyer in case of notification of defects by his purchasers, reimbursement of expenses, liability
9.1 Warranty claims of the buyer presuppose that he has properly fulfilled his statutory duties of inspection and notification of defects. This shall also apply if the Buyer resells the delivery item. In the event of obvious defectiveness or incompleteness of the goods, we must be notified in writing of the complaints within 2 weeks of arrival of the performance at the place of destination, stating the exact nature of the defect and the invoice number. Upon our request, receipts, samples, packing slips and/or the defective goods shall be returned to us. Claims of the purchaser due to defectiveness or incompleteness of the performance are excluded if the purchaser does not comply with this obligation. Hidden material defects must be reported immediately after their discovery. After the performance of an agreed acceptance, the notification of defects that could have been detected during the acceptance shall be excluded.
9.2 We shall only assume liability for a specific purpose or suitability if this has been expressly agreed in writing. Otherwise, the risk of suitability and use shall be borne exclusively by the Buyer. The purchaser is obliged to ensure compliance with the technical framework conditions specified in the documentation and/or in the supplementary documents. Any use deviating therefrom is prohibited. The Buyer shall also impose these and, if applicable, other restrictions on use specified by the Seller on its customers.
9.3 For used delivery items, claims for defects shall be excluded in principle and in full, unless liability for defects has been expressly agreed in writing.
9.4 A defect in the delivery item shall not exist if products supplied by us are used in the buyer's business in functional connection with product components already existing or acquired from third parties, provided that the malfunction was caused by components not supplied by us or their lack of compatibility. If we have expressly warranted compatibility with third-party products in writing, this shall only refer to the product version current at the time of the warranty, but not to older or future product versions. Furthermore, a defect of the delivery item shall not exist if and to the extent that a malfunction is due to the fact that the purchaser has not ensured compliance with the technical framework conditions specified in the documentation and/or in the supplementary documents. If, in such a case, we are called upon to remedy a malfunction, the Buyer shall bear the costs incurred in accordance with our respective applicable cost rates. Likewise, in such a case, the purchaser shall indemnify us against claims for damages by third parties. In any case, the Buyer shall bear the burden of proof that any damage is not due to the use of the products supplied by us in breach of the contract.
9.5 In particular, the Buyer shall remain solely responsible for natural wear and tear of the delivery item, faulty or negligent handling, modification, assembly or operation as well as faulty advice or instruction by the Buyer or third parties, excessive stress, unsuitable operating materials, unsuitable installation site, in particular installation ground, lack of stability or unsuitable securing of the power supply, chemical, electrochemical or electrical influences, weather and other natural influences.
9.6 In the case of consumables, upon discovery of a defect, the materials must be separated immediately in the state of discovery of the defect and kept ready for inspection by us. Otherwise, they shall be deemed approved in the delivered condition without any further liability on our part.
9.7 Should the goods be defective, we may, at our discretion, remedy the defects or provide a replacement free of defects as supplementary performance. Only if this should repeatedly fail or be unreasonable and it is not only a matter of insignificant defects, the buyer is entitled to rescission or reduction in accordance with the statutory provisions. The limitation periods in the event of a delivery recourse shall remain unaffected in the application of German law within the meaning of §§ 478, 479 BGB. The Purchaser shall only be entitled to claims for damages in accordance with Clause 9.12. With regard to any replacement services and rectification work, a warranty period of 3 months shall apply from the date of delivery or performance of the service, which shall, however, run at least until the expiry of the warranty period for our original service (cf. Sections 9.14, 9.15).
9.8 The Buyer shall give us the necessary time and opportunity to carry out all necessary repairs and replacement deliveries after consultation with us. Otherwise, we shall be released from liability for the consequences arising therefrom. If the Buyer requests the urgent dispatch of a technician, which is associated with additional costs for us, or the performance of work outside normal working hours, he shall bear the additional costs incurred as a result (e.g. overtime surcharges, longer journeys, etc.).
9.9 Parts replaced within the scope of subsequent performance shall become our property. We shall only be liable for replacement parts in accordance with these terms and conditions, in particular their clause 9.7
9.10. The Buyer shall inform us without delay of any notice of defect given by its purchaser in relation to our performance. If the Buyer fails to comply with this obligation, he shall have no claims for defects against us. The Buyer shall also secure evidence in a suitable form and give us the opportunity to inspect it upon request.
9.11. Advertising statements made by the Buyer to its customers or in its advertising materials which are not authorized by us shall not constitute grounds for any claims for defects against us.
9.12. We shall be liable for damages in cases of express assumption of a guarantee or a procurement risk as well as for intentional or grossly negligent breaches of duty. In the case of gross negligence, liability for damages shall be limited to the foreseeable, typically occurring damage. Liability for culpable injury to life, limb or health and mandatory liability under the Product Liability Act shall remain unaffected. We shall only be liable for property damage and financial loss caused by slight negligence in the event of a breach of material contractual obligations (i.e. obligations whose fulfillment is essential to the proper performance of the contract and on whose fulfillment the contractual partner regularly relies and may rely), but limited to the typical damage foreseeable at the time of conclusion of the contract.
9.13. If the Buyer is entitled to claim damages instead of performance or to withdraw from the contract, he must declare at our request within a reasonable period whether and how he will exercise these rights. If he does not declare himself in due time or if he insists on performance, he shall be entitled to exercise these rights only after the fruitless expiry of another reasonable grace period.
9.14. Claims due to defects shall become statute-barred within 12 months from the transfer of risk. The same shall apply to defects of title. In the event of intentional or grossly negligent breaches of duty, the absence of guaranteed characteristics, the assumption of procurement risks and personal injury, the statutory limitation periods shall apply. This shall not apply to claims for defects within the meaning of Section 438 (1) No. 2 lit. b BGB when German law is applied.
9.15. For all claims that are not subject to the statute of limitations due to a material defect, a preclusion period of 6 months shall apply. It begins from knowledge of the damage and the person of the damaging party. This does not apply to claims for damages that are based on an intentional or grossly negligent act on our part.
9.16. If the Buyer sends us the delivery item for repair of defects and if we determine that the notification of defects is unjustified and that warranty claims do not exist, we shall request the Buyer to pick up the delivery item within a period of 4 weeks after receipt of the notification or to declare to us in writing that it is to be returned or repaired. In doing so, we point out to the purchaser that without his written notice within this period, we are entitled to scrap it at his expense. Shipment and repair of the delivery item shall be carried out at the expense of the buyer in the event of unjustified notification of defects.
9.17. Any further liability for damages than provided for in the preceding paragraphs of clause 9 is excluded, regardless of the legal nature of the asserted claim. This shall apply in particular to claims for damages arising from culpa in contrahendo, from other breaches of duty or from tortious claims for compensation for damage to property (where German law within the meaning of Section 823 of the German Civil Code applies). This limitation shall also apply insofar as the Purchaser demands expenses without compensation instead of a claim for compensation for damage in lieu of performance. Further liability due to fraudulent concealment of a defect remains unaffected.
9.18. The above provisions shall also apply to a breach of the product monitoring obligation. In this respect, the normal service life of the products supplied by us shall be determined in accordance with the information provided in the documentation and/or in the supplementary documents.
9.19. The above limitations of liability shall also apply by reason and amount in favor of our legal representatives, employees, workers, commercial agents and other vicarious agents and/or assistants.
10. Software use
If software is included in the scope of delivery, the Buyer is granted a non-exclusive right to use the delivered software including its documentation. It is provided for use on the delivery item intended for this purpose. Use of the software on more than one system is prohibited. The purchaser may only copy, revise, translate or convert the software from object code to source code to the extent permitted by law (§§ 69a ff UrhG). The purchaser undertakes not to remove manufacturer's details, in particular copyright notices, or to change them without our prior express consent. All other rights to the software and the documentation, including copies, shall remain with us or with the software supplier. The granting of sub-licenses is not permitted. The transfer is exceptionally permissible if the buyer proves a justified interest in the transfer to a third party while giving up his own use, in particular in the case of the sale of the complete equipment.
We reserve the property rights and copyrights to illustrations, drawings, sketches, calculations and other documents which are sent to the buyer within the scope of an offer and during the execution of the contract. This shall also apply to documents designated as "personal" and/or "confidential". Without our prior written consent, such documents may not be used, reproduced or their contents made accessible to third parties beyond the scope required for the performance of the contract. They shall be surrendered immediately upon request.
12. Withdrawal from the contract
12.1 In the event of a rescission of the contract (e.g. by withdrawal of one of the contracting parties), the Buyer shall be obliged in advance to surrender the delivery item to us. We shall be entitled to have the delivery item collected from the premises of the Buyer.
12.2 In addition, we may demand reasonable compensation from the Buyer for the deterioration, loss or impossibility of surrender of the delivery item which has occurred or is occurring for any other reason and which lies within the Buyer's sphere of risk or responsibility. The amount of the reasonable compensation shall be calculated from the difference between the total price according to the order and the current market value as determined by sales proceeds or, if a sale is not possible, by an estimate of a sworn expert.
Assignment of the Buyer's rights and/or transfer of the Buyer's obligations under this Contract shall not be permitted without our prior written consent.
14. Export and control provisions
14.1 The delivery items as well as any spare parts may be subject to the export control regulations of the Federal Republic of Germany or other countries. In the event of a subsequent export of the delivery item to a foreign country, the Buyer shall be responsible for compliance with the legal provisions there.
14.2 If, in the event of export of a delivery item, the Buyer does not provide the required proof of exemption from VAT, the Buyer shall pay the VAT rate applicable in Germany.
15. Choice of Law, Place of Performance and Jurisdiction
15.1 Insofar as the Buyer is a merchant within the meaning of the statutory provisions, as well as in the case of legal entities under public law and special funds under public law, our place of business shall be agreed as the place of jurisdiction. However, we are also entitled to sue the buyer at his general place of jurisdiction.
15.2 The law of the Federal Republic of Germany shall apply; the validity of the UN Convention on Contracts for the International Sale of Goods is hereby excluded.
15.3 Unless otherwise stated in the order confirmation, our place of business shall be the place of performance.
15.4 Should individual provisions be or become invalid or contain a loophole, the remaining provisions shall remain unaffected.
I also thank you very much for the top message and your support in this matter! We appreciate this very much. Through the early delivery, you have saved us a lot of trouble with our customer!
Also, love to your colleagues in the assembly of components, who made an extra effort for us! That's what I call top customer service.
Dear FELA team, I would like to take this opportunity to thank you for your outstandingly fast feedback as well as the samples! A cooperation as one would wish!
For this reason, I would like to thank you in advance for the super support and cooperation. As I have already informed you, I am also passing on this positive feedback internally. The entire, open communication is very exemplary and so we were able to deal with the issue quickly.