General Terms and Conditions of Sale and Delivery of FACO Metalltechnik GmbH & Co. KG
(as of 04/2021)
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Scope of application:
– Companies, § 14 BGB;
– legal entities under public law/a special fund under public law in accordance with § 310
hereinafter collectively referred to as "Buyer".
- General Information
These terms and conditions (as well as any separate contractual agreements) shall form the basis of all deliveries and services and shall also apply to all future business relations, even if they are not expressly agreed again.
Any deviating (purchasing) terms and conditions of the purchaser that are not expressly acknowledged in writing shall not become part of the contract even through acceptance of the order and shall not apply even through silence. By placing an order, the purchaser accepts these general terms and conditions of sale and delivery.
(4) These terms and conditions shall also apply to all future business transactions with the customer, insofar as these are legal transactions of a related nature and no updated terms and conditions exist.
- Offers and Conclusion of Contract
All offers are subject to change and non-binding, unless otherwise agreed in writing.
A contract is concluded - in the absence of a special agreement - with the written order confirmation of the supplier. If an order is to be regarded as an offer (§ 145 BGB), it can be accepted within 2 weeks.
Orders are binding for the purchaser. Only the written order confirmation shall be authoritative for the acceptance, scope and execution of the delivery, unless the Purchaser immediately objects in writing; this shall apply in particular to verbal orders. Orders amending or supplementing offers also require written confirmation. Agreements, assurances, supplements or ancillary agreements made by telegraph, telephone, e-mail or verbally shall also require written confirmation in order to be valid.
The documents belonging to the offer show approximate values, insofar as they are not declared as binding. Ownership rights and copyrights to all documents handed over to the customer in connection with the order, e.g. drawings, illustrations, calculations, cost estimates, technical picture material, etc., shall be reserved; they may not be made available to third parties without written approval. Such documents must be returned in the event that the contract is not concluded. They must also be returned on request if they are no longer required by the customer in the ordinary course of business.
5 We reserve the right to make customary design deviations (e.g. due to technical progress) which do not impair the intended use (e.g. colour deviation, change of shape).
6. quality and dimensions shall be determined in accordance with DIN standards or material sheets. If no DIN standards or material sheets exist or are available, the corresponding Euro standards shall apply or, in the absence of such, commercial practice.
7. no special surface quality of the base material, in particular freedom from grease, shall be owed unless expressly agreed.
- Prices and Payments
Unless otherwise agreed, the prices stated in the order confirmation are ex works, excluding packaging, unloading and customs duties. Value added tax at the respective statutory rate shall be added to the prices. Upon request, the delivery can be covered by transport insurance; the costs shall be borne by the Purchaser.
The goods are always provided unpacked and without corrosion protection. Packaging or protective measures shall only be taken at the express request of the Purchaser. Such measures or packaging will be charged at cost price. Complaints due to defective packaging are excluded.
3. in the absence of a special agreement, payment shall be made to the business account notified as follows:
Within 30 days after date of invoice net or within 10 days with 2 % discount. Payments for contract work must be made immediately net.
4. the prices valid on the day of delivery shall be decisive for the price formation, unless a fixed price agreement has been made. We reserve the right to make reasonable and appropriate price changes due to changes in wage, material and distribution costs for deliveries made 6 months or more after conclusion of the contract, as well as in the event of significant exchange rate fluctuations (USD / EUR).
Interest on arrears shall be charged at 9 percentage points above the base rate in accordance with Section 288 (2) of the German Civil Code (BGB). The assertion of a concrete damage caused by default remains reserved.
The customer shall only have the right to withhold payments or to offset them against counterclaims insofar as his counterclaims are undisputed or have been legally established. Asserted warranty claims do not impede the due date of the claim. If, after conclusion of the contract, it becomes apparent that the claim to counter-performance is endangered by a lack of ability to pay, immediate provision of security or payment may be demanded (§321 BGB).
7. we reserve the right to insure deliveries via credit insurance and to provide the insurer with the data of the customer and the order required for this purpose.
In case of doubt, call orders shall be called within one year after placing the order at the latest. If the call order is not accepted in full, the supplier shall be entitled to charge a shortfall surcharge. to demand. In the case of current delivery schedules, the purchaser must announce the planned discontinuation of the part as soon as possible - but at least 6 months before discontinuation. Otherwise he has to compensate for pre-planned material and production costs.
- Delivery Periods, Delay in Delivery
All information about delivery times are only approximate and therefore non-binding. For the The start of the delivery period shall be the date of the order confirmation, unless otherwise agreed (e.g. from receipt of the advance payment). Compliance with the delivery period shall be subject to the condition that all commercial and technical questions between the contracting parties have been clarified and that the Purchaser has fulfilled all obligations incumbent upon it, such as the provision of documents to be made available, releases or (advance) payment obligations. If this is not the case, the delivery period shall be extended accordingly. In the event of non-compliance with the delivery period for which the Supplier is responsible, the Purchaser may demand performance in writing after expiry of the non-binding delivery date stated and set a reasonable delivery period for its part, which must, however, be at least 4 weeks.
Compliance with a stated delivery period is subject to correct and timely delivery to us. Any delays that become apparent will be communicated as soon as possible.
The delivery time shall be extended appropriately - also within a delay in delivery - in the event of e.g. force majeure, measures within the scope of industrial disputes, energy shortage as well as other events which are beyond the supplier's sphere of influence. The obligation to deliver shall be suspended for the duration of the disruption. The Purchaser shall be notified as soon as possible of the beginning and end of such hindrances. Claims for damages are excluded.
4. in the event of subsequent amendments to the contract which may affect the delivery period, the delivery period shall be extended to a reasonable extent.
The delivery period shall be deemed to have been complied with if the delivery item has left the Supplier's works or notification of readiness for dispatch has been given by the time the delivery period expires. Insofar as acceptance is to take place, the acceptance date shall be decisive - except in the case of justified refusal of acceptance - alternatively the notification of readiness for acceptance to the Purchaser.
If dispatch or acceptance is delayed at the request of/for reasons for which the Purchaser is responsible, the costs incurred by the delay shall be charged to the Purchaser, starting one month after notification of readiness for dispatch, but in the case of storage at the Supplier's works at least 0.5 % of the invoice amount for each month. The Supplier shall also be entitled, after setting and fruitless expiry of a reasonable deadline, to dispose otherwise of the delivery item and then to supply the Purchaser again with a reasonably extended deadline.
If the customer suffers damage due to a delay in delivery, he shall be entitled to demand a lump-sum compensation for the delay to the exclusion of any further claims for compensation. This shall amount to 0.5 % for each full week of delay, but in total to a maximum of 5 % of the value of that part of the overall delivery which cannot be used in good time or in accordance with the contract as a result of the delay.
The purchaser shall check the delivery documents and acknowledge them. Any objections must be notified in writing without delay, otherwise the delivery shall be deemed to have been accepted.
- Right of Withdrawal
(1) If the Purchaser - taking into account the statutory exceptions - sets a deadline for performance after the due date and if the deadline is not met, the Purchaser shall be entitled to withdraw from the contract within the scope of the statutory provisions. He undertakes to declare at the Supplier's request whether he intends to exercise his right of withdrawal. Section IX shall apply in all other respects.
The purchaser may withdraw from the contract without setting a deadline if the entire performance becomes definitively impossible before the transfer of risk. In addition, the customer may withdraw from the contract if the execution of a part of the delivery becomes impossible in the case of an order and the customer has a justified interest in refusing the partial delivery. If this is not the case, the Purchaser shall pay the contract price attributable to the partial delivery. The same shall apply in the event of impossibility. If the impossibility or incapacity occurs during the delay in acceptance or if the purchaser is solely or predominantly responsible for these circumstances, he shall remain obliged to counter-performance.
3. if the fulfilment of the contractual delivery obligations is temporarily prevented by the occurrence of unforeseeable circumstances, in particular "force majeure" - despite the exercise of reasonable care according to the circumstances of the case, regardless of whether the hindrances occurred in the factory or at suppliers (e.g. operational disruptions, strike/lockout, delays in the delivery of essential raw materials, energy shortage, transport failure, etc.), the delivery obligation shall lapse without the Purchaser being able to assert claims for damages. The purchaser is only entitled to withdraw from the contract if the delay is unreasonable for him.
- Transfer of Risk, Acceptance and Dispatch
(1) The risk shall pass to the Purchaser upon commencement of loading of the delivery item, even if partial deliveries are made or the Supplier has assumed other services, e.g. shipping costs or delivery. Insofar as acceptance is to take place, this shall be decisive for the transfer of risk. It must be carried out immediately on the acceptance date or after notification of readiness for acceptance (within 7 working days). The Purchaser may not refuse acceptance in the event of a non-essential defect. If the Purchaser does not accept or refuses acceptance despite a grace period being set, damages for non-performance may be claimed and/or the contract may be rescinded in whole or in part.
If dispatch or acceptance is delayed or does not take place due to circumstances for which the Supplier is not responsible, the risk shall pass to the Purchaser on the date of notification of readiness for dispatch or acceptance. From the same date, the Purchaser shall be liable for any damage that may be caused to third parties. It is assured to take out the insurances requested by the purchaser at the purchaser's expense.
(3) Shipment shall always be at the risk of the Purchaser, even in the case of carriage-paid deliveries and transport with the Supplier's own vehicles. Dispatch route, mode of dispatch and means of dispatch shall be left to the Supplier, to the exclusion of liability and without guarantee for the cheapest transport, insofar as no instruction of the Purchaser exists.
4 Partial deliveries are permissible insofar as they are reasonable for the customer.
- Claims for Defects/Warranty
(1) The customer shall inspect the goods immediately upon delivery and shall notify us in writing of any defects/incorrect deliveries/short quantities found without undue delay (within 1 week of acceptance) and give notice of defects. The obligations to inspect and give notice of defects shall be governed by § 377 of the German Commercial Code (HGB). The supplier shall be given the opportunity to record and inspect the defect of which notice has been given; the delivery item shall not be modified/processed/issued to third parties for the time being. Insofar as measures are taken to minimise damage or negotiations are entered into on account of a notified defect, this shall be deemed neither an acknowledgement nor a waiver of the objection that the complaint was not raised in good time.
(2) Delivered parts which prove to be defective as a result of circumstances prior to the passing of risk shall, at the discretion of the Supplier, be repaired or replaced free of defects; replaced parts shall become the property of the Supplier. In the event of a replacement delivery, the Purchaser shall return the defective item to the Supplier in accordance with the statutory provisions.
3. in the event of a justified notice of defect, the purchaser shall give the supplier the necessary time and opportunity to carry out all necessary repairs and replacement deliveries after notification; otherwise the supplier shall be released from liability for the resulting consequences. Only in urgent cases to avert disproportionately large damage or a risk to operational safety, in which case the Supplier must be notified immediately, shall the Purchaser have the right to remedy the defect itself or have it remedied by third parties and to demand reimbursement of the necessary expenses. If, within the scope of the warranty, the defect is repaired or replaced, this shall not trigger a new commencement of the warranty obligation. Multiple rectifications are permissible.
Insofar as a complaint proves to be justified, the supplier shall bear the costs arising from the rectification or replacement delivery only insofar as no disproportionate burden occurs. Of the direct costs arising from the rectification or replacement delivery, the Supplier shall bear the costs of the replacement delivery including shipment to the originally agreed place of delivery. Any costs for shipment to a place other than the place of delivery shall be borne by the Purchaser.
(5) The Supplier shall bear or reimburse the expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labour and material costs and, if applicable, removal and installation costs, in accordance with the statutory provisions if a defect is actually present. However, in the event of subsequent performance, the Supplier reserves the right to carry out any necessary removal and installation itself. The Supplier shall only owe reimbursement of expenses for the costs of removal and installation if it allows a reasonable deadline set by the Purchaser to expire fruitlessly or if the setting of the deadline is dispensable. If there is actually no defect, the Supplier may demand reimbursement from the Purchaser of the costs incurred as a result of the unjustified request to remedy the defect (in particular inspection and transport costs), unless the lack of defectiveness was not apparent to the Purchaser.
The Purchaser shall have the right to rescind the contract within the scope of the statutory provisions if the Supplier - taking into account the statutory exceptions - allows a reasonable period of time set for the repair or replacement delivery due to a material defect to expire fruitlessly. If the defect is only insignificant, the Purchaser shall only be entitled to reduce the purchase price. contract price. The right to a reduction of the contract price shall otherwise remain excluded. Further claims shall be determined in accordance with Section IX of these Terms and Conditions.
If the Purchaser justifiably withdraws from the contract of sale or justifiably claims damages in lieu of performance, the Supplier shall be obliged to dismantle and transport away at its own expense the defective item delivered, insofar as the Purchaser has already installed it. The Purchaser may, upon request, carry out the dismantling itself; in this case the Supplier shall reimburse the Purchaser for the costs incurred, but only to the extent that they are the Purchaser's prime costs excluding profit. If the Purchaser commissions a third party company with the dismantling and/or removal, the costs incurred shall only be reimbursed if the Purchaser has previously and unsuccessfully granted the Supplier a reasonable period of grace, unless the period of grace is dispensable under the statutory provisions.
(8) In particular, the Supplier shall not assume any warranty in the following cases: Usability of the goods for the purpose intended by the Purchaser, unless usability has been expressly confirmed by contract, unsuitable or improper use, faulty assembly or processing/repair by the Purchaser or third parties, installation of third-party parts, natural wear and tear, excessive stress/wear (all rotating parts, drive, tools; the benchmark is single-shift operation), faulty or negligent handling, chemical, electrochemical or mechanical influences, unless the Supplier is responsible for them. Deviations in weight, colour, dimensions and quantity which are customary in the trade and which are reasonable for the Purchaser shall not constitute a defect.
(9) Properties shall only be deemed warranted if they are expressly designated as such in the contract. No warranty is given for information, advice and references regarding any performance characteristics, areas of application, possible uses or similar; unless they have been guaranteed in writing. Verbal information as well as information in the documents do not contain any warranties; they only serve the purpose of specification. Insofar as the materials to be used by the supplier are specified in the contract, this only guarantees the specification and not the suitability of the materials for the contractual purpose. The Supplier shall only be obliged to provide information in the event of their obvious unsuitability. The Purchaser shall inform himself about any export regulations and governmental regulations.
10. a warranty is excluded for used goods, unless the supplier conceals defects intentionally or through gross negligence.
The Purchaser's right of recourse against the Supplier shall exist only to the extent that the Purchaser has not concluded any agreements with its customer exceeding the scope of the statutory mandatory claims based on Defects.
If the Purchaser or a third party commissioned by him carries out improper repairs, the Supplier shall not be liable for the resulting consequences. The same applies to changes made to the delivery item without prior consent.
If the use of the delivery item leads to the infringement of industrial property rights or copyrights in Germany, the Supplier shall, at its own expense, procure for the Purchaser the right to continue using the delivery item or modify the delivery item in a manner reasonable for the Purchaser in such a way that the infringement of industrial property rights no longer exists. If this is not possible under economically reasonable conditions or within a reasonable period of time, the Purchaser shall be entitled to withdraw from the contract. from the contract. Under the aforementioned conditions, the Supplier shall also be entitled to withdraw from the contract. In addition, the Supplier shall indemnify the Purchaser against undisputed or legally established claims of the holders of the property rights.
14. the obligations of the Supplier set out in section VIII.13 are, subject to section IX, conclusive in the event of an infringement of industrial property rights or copyrights and shall only exist if the Purchaser notifies the Supplier without undue delay of any asserted infringements of industrial property rights or copyrights, the Purchaser supports the Supplier to a reasonable extent in the defence against the asserted claims or enables the Supplier to carry out the measures for modification set out in section VIII.12 12, the Supplier retains the right to all measures for defence, including out-of-court settlements, the defect of title is not based on an instruction of the Purchaser and the infringement of rights was not caused by the fact that the Purchaser modified the delivery item, in particular by processing it, or used it in a manner not in conformity with the contract.
- Reservation of Ownership
1. the ownership of the delivered item remains reserved until full payment of all claims arising from the delivery contract. This also applies to all future deliveries, even if this is not always expressly referred to. The object of sale can be taken back if the purchaser behaves in breach of contract (in particular in the event of default in payment).
As long as the ownership has not yet been transferred to the customer, he is obliged to treat the object of sale with care. In particular, he shall be obliged to insure it adequately at his own expense against theft, fire and water damage as well as other damage at replacement value. If the Purchaser fails to provide proof of insurance at the Supplier's request, the Supplier shall be entitled to insure the delivery item at the Purchaser's expense. If maintenance and inspection work has to be carried out, the Purchaser shall carry this out in good time at its own expense.
The purchaser is entitled to resell the goods subject to retention of title in the ordinary course of business. The Purchaser hereby assigns to the Supplier any claims against the customer arising from the resale of the reserved goods (including balance claims from current account agreements, from sale, from processing/combining of the delivered goods) in the amount of the agreed final invoice amount (including value added tax); this shall also apply to claims of the Purchaser regarding the reserved goods on other legal grounds (insurance, tort, etc.). The assignment shall apply irrespective of whether the purchased goods have been resold without or after processing. The Purchaser shall remain entitled to collect the claim even after the assignment. The authority of the supplier to collect the claim himself remains unaffected. However, the Supplier shall not collect the claim as long as the Purchaser meets its payment obligations from the proceeds collected, is not in default of payment and, in particular, no application for the institution of insolvency proceedings has been filed or payments have not been suspended. As soon as the purchaser fails to fulfil a contractual obligation, he will disclose the assignment upon request and provide the necessary information and documents.
4. if a customer of the orderer has effectively excluded the assignment of claims against himself, then the orderer and the supplier place themselves in the internal relationship in such a way that if the aforementioned claims assigned in advance have been assigned to the Supplier in an effective form; the Supplier shall be authorised by the Purchaser to assert the claims in its name for its own account as soon as the Purchaser is no longer entitled to collect the claim in its own name in accordance with the above provision (Clause 3).
(5) The processing/conversion of the object of sale by the Purchaser shall always be carried out on behalf of the Supplier without any liabilities arising therefrom. If the object of sale is processed or mixed with other objects not belonging to the Supplier, the Supplier shall acquire co-ownership of the new object in the ratio of the objective value of the object of sale subject to retention of title to the other processed objects at the time of processing/mixing. If the combination/mixing takes place in such a way that the Purchaser's item is to be regarded as the main item, it shall be deemed agreed that the Purchaser transfers (co-)ownership to the Supplier on a pro rata basis and keeps the (co-)ownership thus created in safe custody for the Supplier. If the acquisition of (co-)ownership is legally prevented, the Purchaser shall assign its claim to compensation to the Supplier as a substitute. In order to secure the claims against the Purchaser, the Purchaser also assigns to the Supplier such claims against a third party as accrue to the Purchaser through the combination of the reserved goods with a property; the Supplier accepts this assignment.
The Supplier shall be entitled to demand appropriate securities for the proper fulfilment of the Purchaser's obligations. The Supplier undertakes to release the securities to which it is entitled at the request of the Purchaser insofar as their value exceeds the claims to be secured by more than 20 %.
The delivered goods may neither be pledged nor assigned by way of security without consent. In the event of access by third parties to the goods subject to retention of title, the Purchaser shall draw attention to this ownership, notify the Supplier without delay and provide any assistance required to safeguard the rights. Insofar as the third party is not able or obliged to reimburse the court and out-of-court costs incurred in this connection, the Purchaser shall indemnify the Supplier against such costs.
In the event of conduct in breach of contract on the part of the Purchaser - in particular in the event of default in payment - as well as in the event of credit unworthiness, immediate segregation may be demanded. The Supplier shall be entitled to take back the delivery item and the Purchaser shall be obliged to surrender it. The Purchaser shall grant the Supplier or its agents access for collection and removal.
9. the application for the opening of insolvency proceedings on the assets of the purchaser entitles the purchaser to withdraw from the contract and to demand the immediate return of the delivery item.
1. if the delivery item cannot be used by the purchaser in accordance with the contract through the fault of the supplier as a result of omitted or faulty execution, of suggestions and consultations made before or after conclusion of the contract or through the breach of other secondary contractual obligations, the provisions of sections VII. and IX. shall apply accordingly, to the exclusion of further claims of the purchaser.
2 The supplier shall only be liable for damages - irrespective of the legal grounds - in the event of intent and gross negligence.
The supplier shall only be liable for simple negligence - except in the case of injury to life, body or health - if essential contractual obligations are violated. The liability is limited to the contract-typical and foreseeable damage.
4. liability for indirect and unforeseeable damages, loss of production and use, loss of profit, loss of savings and financial losses due to claims by third parties, is excluded in the case of simple negligence - except in the case of injury to life, limb or health.
(5) Any further liability other than that stipulated in this contract is excluded, irrespective of the legal nature of the asserted claim. However, the above limitations or exclusions of liability shall not apply to any strict liability prescribed by law (e.g. under the Product Liability Act) or liability under a strict warranty.
Insofar as liability is excluded or limited in accordance with Sections 3 and 4, this shall also apply to the personal liability of the Supplier's employees, representatives, organs and vicarious agents.
7. further claims are excluded.
All claims of the customer - on whatever legal grounds - shall become statute-barred after 12 months. If the purchased item is used in multi-shift operation, the limitation period for claims based on defects shall be shortened accordingly. The statutory time limits shall apply to claims for damages.
- Special conditions for perforated plates
1. if sheet metal is processed according to drawings, descriptions or samples, etc. of the purchaser, the purchaser shall assume sole responsibility for ensuring that the processing in the intended design does not result in any infringement of property rights or copyrights of third parties.
2. we shall not be liable if slight flash rust forms on the parts as a result of their degreasing and if sheet metal with a strength of 80 kg or more develops cracks as a result of processing, furthermore if fine holes become clogged with a zinc skin during full bath galvanizing.
3. we are not liable if minor misalignments can be found in border holes.
4. if the customer provides us with the material to be processed, i.e. if it is contract work, the present provisions shall apply mutatis mutandis and the following shall apply in addition:
5 Liability for defects shall be excluded for damage caused by unrecognised material defects in the material provided.
The customer shall provide the material free of charge and carriage paid.
If defects in the material lead to increased production costs, the price may be increased by us accordingly. The waste and offcuts occurring in the case of contract work are taken into account in the price calculation. It is therefore not remunerated separately and becomes our property.
8. waste caused by contract work of plastics will be sent to the purchaser at his expense.
(9) In the event of justified complaints, our liability shall be limited to the amount of the invoiced wage. We shall only recognise claims exceeding this - in particular for the material supplied - if we have previously agreed to further liability in writing.
- Place of Performance, Place of Jurisdiction, Applicable Law
The place of performance for all obligations arising from the contractual relationship is the registered office of the supplier.
The place of jurisdiction shall be the registered office of the Supplier, provided that the Purchaser is a merchant, a legal entity under public law or a special fund under public law or has no general place of jurisdiction in the Federal Republic of Germany. However, the Supplier shall also be entitled to bring an action at the Purchaser's place of business.
All legal relations between the Supplier and the Purchaser shall be governed exclusively by the law of the Federal Republic of Germany applicable to the legal relations between domestic parties, to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
4. in the case of foreign transactions, the application of §§ 305 - 310 BGB is also excluded.
- Final Provisions
(1) The possible invalidity of individual provisions shall not affect the validity of the remaining provisions. An invalid provision shall be replaced by a provision that comes as close as possible to the economic purpose of the invalid provision in a legally permissible manner.
There shall be no verbal ancillary agreements. Amendments and supplements must be made in writing; this also applies to the written form clause itself.
Personal data of the customer are collected, processed and stored for the purpose of executing the contract.
FACO Metal Technology GmbH & Co. KG