General supply and assembly conditions
I. Scope of delivery obligation
1.) The written order confirmation plus implementation planning approved by the customer constitute the sole basis for determining our delivery obligation. Additional work and changes require our written confirmation. The customer is responsible for checking that the intended plant corresponds to official requirements and will obtain approval (building authorities, GKV, TÜH and other official authorities and supervisory bodies). If changes have to be made to the plant relative to the original implementation planning due to official orders, the costs thereby incurred will be borne by the customer.
2.) No general terms of business issued by the customer will be recognised unless the supplier expressly confirms their validity in writing.
3.) Tender documents such as drawings, sketches, details of weight and other dimensions are deemed to be only approximations unless we expressly designate them as binding in writing.
4.) We retain ownership and the copyright on all documents belonging to the offer. These documents must not be made available to third parties and must be returned immediately upon request, particularly if we are not awarded the contract.
II. Price and payment conditions
1.) The prices apply ex works including loading at the works, but exclude packing unless agreed to the contrary in writing.
2.) Payment must be made to our payment office free of transaction charges and without any deductions (unless agreed to the contrary in writing), as follows:
a) for delivery of plant and machinery:
30% on receipt of our order acceptance confirmation,
30% on notification of readiness to despatch the main parts or, without such notification, on delivery,
30% after completion of assembly and/or delivery,
10% after acceptance, but at the latest 3 months after delivery.
If the customer unjustifiably refuses acceptance upon notification of readiness to despatch or on delivery, in particular due to insignificant defects, 80% of the agreed price becomes due for payment with immediate effect.
b) for spare parts, additional parts and assemblies: nett in cash immediately after receipt of invoice.
c) If the price factors “labour and materials” increase after confirmation of order acceptance, a price increase amounting to the increase in costs is deemed to be agreed. In the event of an increase of more than 10% of the total price originally agreed, FSM has an obligation to provide detailed proof of the change in costs. For plants, this will be based on percentages for labour and materials respectively of 40% each, and for assembly work, a labour percentage of 80%.
3.) In the case of acceptance of a bill of exchange, any and all discounting and bill charges will be borne by the customer. If a bill is not discounted, or is not redeemed promptly, our whole outstanding claim become due for payment.
4.) If we become aware of factors which cast doubt on the customer’s creditworthiness, or if the latter is in arrears of a part-payment for longer than 2 weeks, our total outstanding claim becomes due for payment, even if bills of exchange have been accepted by ourselves.
5.) In the event of failure to meet a payment due date, and subject to the pursuit of further rights for the period of delay, interest and costs will be charged at the usual rate for cash loans provided by private banks, without any formal reminder being necessary.
6.) Withholding payments or offsetting these against any kind of counterclaim by the customer, including any such from earlier deliveries, is excluded.
III. Delivery period
1.) The agreed delivery period commences upon receipt of the agreed on-account payment after despatch of the confirmation of order acceptance. The pre-condition for the start of the delivery period is also that all technical and commercial details have been clarified. This should be understood to include in particular the receipt by FSM of installation drawings for manufacture of the plant approved by the customer.
2.) The criterion for determining whether the delivery period has been met is the date on which the object of supply left the works or on which the customer was notified of readiness to despatch.
3.) The delivery period will be reasonably extended if unforeseen events occur, without taking into account whether these occurred in our works or on a sub-contractor’s premises. This applies in particular to disruptions to operations, strikes, lockouts and delays in the delivery of important raw materials and components.
4.) If delivery is delayed for reasons for which the customer is responsible, we are entitled to charge the costs incurred in storage to the customer, to the extent of at least 1/2% of the amount of the invoice for each month commenced, and after expiry of a deadline of which the customer has been notified, make the object of supply available elsewhere and supply it to the customer within an extended delivery period.
5.) If delivery is delayed due to fault on our part, the customer is entitled to withdraw from the contract after an additional period of at least 10 weeks specified by ourselves has expired. This additional period commences when the notification to ourselves is received. The pursuit of any claims for compensation is excluded.
IV. Transfer of risk
1.) Risk transfers to the customer when the object of supply, including parts thereof, has left the works. This applies equally to deliveries made by our own vehicles or deliveries with carriage paid, including packing, and in cases where we have undertaken assembly work, installation or other services.
2.) The commercial obligation to inspect goods and report defects regulated in § 377 HGB (German Commercial Code) applies. If you fail to make the notifications stipulated therein, the goods are deemed to be approved unless the defect was not detectable at the time of the inspection. This does not apply if we have fraudulently concealed a defect.
3.) If despatch is delayed due to circumstances beyond our control, risk transfers to the customer on the date of readiness to despatch.
4.) At the customer’s request, we will insure the goods against breakages, fire, water and transport damage at his expense. The cost of insurance will be charged at cost price.
1.) We will remedy all damage and defects on the object of supply for which proof is provided and which are attributable to material faults or faults in manufacture. If the defective object of supply is returned to us, we may, at our discretion, provide a substitute or take back the object of supply from the customer and return the payment made by the customer, less any costs of assembly or other additional costs.
2.) The warranty does not extend to parts subject to natural wear and tear; it is null and void in the event of failure to comply with our installation and operating instructions, or if modifications are made to the plant without our consent. The warranty obligation exists only in respect of the original customer. It expires within one year of the commissioning test run, or within 6 months for mechanical parts, or within 3 months in the event of daytime and night-time operation, but at the latest within 15 or 9 or 8 months of transfer of ownership respectively, unless agreed to the contrary.
3.) Any claims by the customer for compensation are excluded. The exceptions to this are claims pursued by the customer for compensation due to loss of life, personal injury, damage to health or the breach of major contractual obligations (cardinal obligations) and liability for miscellaneous damage based on deliberate or grossly negligent breach of the supplier’s obligations, or those of his legal representatives or vicarious agents. Major contractual obligations means obligations which it is necessary to fulfil to achieve the aim of the contract.
4.) In the event of breach of major contractual obligations, the supplier is liable solely for foreseeable damage typical of the contract if this was caused by simple negligence, unless the customer’s claims for compensation arise from loss of life, personal injury or damage to health.
5.) The restrictions of paras. 3 and 4 also apply to the benefit of the supplier’s legal representatives and vicarious agents if claims are pursued directly against them.
6.) The limits of liability arising from paras. 3 and 4 do not apply if the supplier fraudulently conceals a defect or has given a guarantee of quality in respect of the item. The same applies if the supplier and the customer have entered into an agreement on the quality of an item. The provisions of the law on product liability remain hereby unaffected.
7.) Assurances that the object of supply is suitable for the customer’s intended purpose require our express written confirmation. Technical advice is provided to the best of our knowledge and in good faith based on our experience and tests. No liability may be derived from this on any legal basis whatsoever (excluding wilful intent and gross negligence).
If we are contracted to carry out assembly, this will be carried out by ourselves within the context of a separate contract for work, independent of supply. The special written assembly conditions apply to this contract for work.
VII. Reservation of ownership
1.) The goods supplied (goods subject to reservation of ownership) remain our property until all claims which we have now or will have in future against the purchaser have been fulfilled, including all current account balance claims. If the purchaser behaves contrary to the contract, in particular if he delays settlement of a payment claim, we have the right to withdraw from the contract after having set a reasonable period for payment. If we take back the goods subject to reservation of ownership, this per se represents a withdrawal from the contract. All transport costs incurred in taking back the goods will be borne by the purchaser. If we pledge the goods subject to reservation of ownership, this also represents a withdrawal from the contract. We are entitled to use goods subject to reservation of ownership which we have taken back. Proceeds from such use will be offset against the sums owed to us by the purchaser, after we have deducted a reasonable sum for the cost of using them.
2.) The purchaser must handle the goods subject to reservation of ownership with care. He must insure them at his own expense against damage due to fire, water and theft at the original value. If maintenance and inspection work becomes necessary, the purchaser must carry this out promptly at his own expense.
3.) If the purchaser so requests, we have a duty to release the securities to which we are entitled to the extent that their realisable value exceeds the value of our outstanding claims on the purchaser by more than 10%. However, in doing so we may select the securities to be released.
4.) The risk of damage or destruction is also borne by the customer during the period of reservation of ownership. Pledging or transferring security on the goods subject to reservation of ownership is prohibited. The customer must notify us immediately in writing of any access by third parties, for example pledges, and draw the attention of the reservation of ownership to the pledging third party.
5.) In the event of onward selling of the objects subject to reservation of ownership, upon signature of the contract the customer assigns his claims against the purchaser to ourselves to the amount of our relevant existing claim. This assignment applies irrespective of whether the item purchased has been sold on with or without processing. The purchaser is still authorised to collect the claim even after the assignment. Our authority to collect the claim ourselves remains hereby unaffected. However, we will not collect the claim if the purchaser fulfils his payment obligations from the proceeds collected, is not in default of payment and in particular has not made any application for the opening of insolvency proceedings or has suspended payments.
6.) Processing or conversion by the purchaser of the item purchased always takes place on behalf of FSM. In this case, the vested right of the purchaser to the item purchased continues in the converted item. If the item purchased is processed together with other objects which are not our property, we acquire joint ownership of the new item in proportion to the objective value of our item relative to the other objects processed at the time of processing. The same applies in the event of mixing. If mixing takes place in a way which would lead the purchaser’s item to be regarded as the main item, it is deemed to be agreed that the purchaser transfers joint ownership to us proportionately and safeguards the sole ownership or joint ownership thus created for us. To secure our claims against the purchaser, the purchaser also assigns to us such claims as accrue to him against a third party through a combination of the goods subject to reservation of ownership with a piece of land; we accept this assignment as of now.
VIII. Court of jurisdiction
1.) To the extent permissible in law, the registered office of FSM in Pohlheim bei Gießen is agreed as the place of performance and court with jurisdiction over all disputes arising from the contractual relationship, including any actions pertaining to bills of exchange.
2.) Statutory regulations apply to contracts with non-traders in respect of the place of performance and the court of jurisdiction. We are, however, also entitled to bring legal action at the headquarters of the customer.
3.) The law of the Federal Republic of Germany applies exclusively. Application of the uniform laws on the sale of goods in the Hague Convention on the International Sale of Goods is excluded.
FSM Frankenberger GmbH & Co. KG, Vor dem Hohen Stein 1, 35415 Pohlheim
Version of 31.07.2019
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