General Terms and Condition
1. Application of our General Terms and Conditions
a) Business transactions between us and our business customers shall be exclusively governed by the General Terms and Conditions set out below for the duration of the business relationship, i.e. also for future orders, unless we expressly agree to any change in writing or by telex or fax.
b) We hereby object to any derogating terms in order forms or letters sent by customers in advance. They will not become binding on us, even in cases where we do not expressly object to them, or not in each individual case, or where we deliver the goods after receiving the terms of purchase.
c) Side agreements and representations, as well as changes and supplements to a contract concluded in writing or by telex or fax, are only effective if they are in writing (e-mail or fax is acceptable).
d) Contracts with our customers are only formed when we confirm the order in writing (e-mail or fax is acceptable), which may occur at the time of invoicing, or, alternatively, when we deliver the goods. Prior to the contract becoming effective, our offers are non-binding and subject to change.
e) The parts offered are manufactured by us. They are produced from quality materials and fit perfectly. They are only offered as replacement parts. The original numbers of other manufacturers are only provided for purposes of comparison to help customers select the parts they need.
2. Delivery terms
a) Our prices are quoted in EUR ex works, exclusive of the statutory value-added tax. The prices agreed are based on our current purchase prices, wage and salary rates, as well as customs and freight fees and other regulatory fees we are charged at this time. We reserve the right to increase the delivery price by an appropriate amount that customers can be expected to accept if these prices, rates or fees increase after an order was placed.
b) Special packaging is charged at cost.
c) We reserve the right to charge customers for the cost of test parts and the tools required to manufacture them.
d) Partial deliveries are permitted to the extent customers can be expected to accept.
e) The delivery times provided by us are our best estimates. Call-off orders and split deliveries always require individual delivery time agreements. If we fail to make a delivery within the agreed delivery period, the customer must first provide a reasonable additional period before it may rescind the contract. In the determination of this additional period, the customer must specifically take into account any time required for shipment.
f) With regard to contracts involving multiple shipments, the customer may not assert any rights based on supply disruptions with respect to one partial delivery for other partial deliveries made under that order. With regard to call-off orders, we are entitled to procure the material for the entire order right away and to produce the entire quantity ordered for small and medium-size batches immediately. Consequently, unless expressly agreed otherwise, changes requested by the customer after the order has been placed cannot be considered.
g) We are entitled to make surplus or short deliveries deviating by up to 10% from the amount agreed. In these cases, the customer shall pay for the quantity actually delivered.
h) Goods may only be returned with our prior consent. This does not limit the customer’s statutory rights.
i) Where we are required to perform first, we may refuse performance if it becomes apparent, after the contract has been concluded, that our claim for consideration is at risk due to the customer’s inability to perform. The right to refuse performance no longer applies if the consideration is received or security is provided for it. We may specify an appropriate period of time during which the customer, at its discretion, must provide the consideration or security contemporaneously with our performance. We are entitled to rescind the contract if the customer does not provide the respective consideration or security during this period. Further details are governed by Section 321 BGB.
3. Responsibility for the risk; force majeure
a) Goods are shipped at the customer’s risk.
b) Our obligation to deliver the goods is fulfilled as soon as possession of them has been properly transferred or as soon as they have been loaded onto our, or the customer’s, vehicles.
c) Where the customer does not take delivery within an appropriate period of time of being notified of our readiness to ship the goods or refuses to take delivery, or where we are not able to ship goods within the period of one month of the time agreed for the delivery for reasons for which we are not responsible, then we have the right to store the goods at our premises at the customer’s expense and risk. In this case, we are entitled to an amount corresponding to 75% of the storage fees of a freight forwarding company.
d) Under circumstances not caused by us and for which we are not responsible which unduly complicate the manufacturing or delivery of the goods ordered or make it temporarily impossible – e.g. force majeure, such as war or regulatory actions, disruptions in business operations or traffic, a shortage of labour or raw materials, strikes and lock-outs, both at our company and at our suppliers’ companies – we are released from our delivery obligation and entitled to terminate our deliveries without an additional period for performance.
4. Warranty
a) The information we provide regarding the goods and services to be delivered, their purpose, etc. (e.g. dimensions, weight, hardness, use values and performance) is only a description or designation and does not constitute a warranty. These values are only approximations. Unless expressly otherwise agreed, we reserve the right to deviate from such values to an extent that is customary in the industry. Negligible deviations from samples or prior shipments or other information provided that do not significantly impact the contractually stipulated function are not considered defects and do not give rise to warranty claims.
b) In particular, the following does not constitute a defect either, which means that warranty claims cannot be asserted in these cases: Any use of the delivery item other than the use contractually agreed; natural wear and tear; improper handling by the customer or third parties, e.g. improper storage or storage for excessive periods or improper installation, etc., defects at the site of use, e.g. faulty gasket mating surfaces; use of improper external media, e.g. sealing media, lubricants, etc.
c) With respect to apparent defects, notifications of defects must be provided without undue delay, but in any case within 10 days of receiving the goods, including a detailed description. With respect to hidden defects, notifications of defects must be provided without undue delay, but in any case within 10 days of their discovery, including a detailed description.
d) Where notifications of defects are justified and provided in due time, we will fulfil our warranty obligation, at our discretion, either by rectifying the defect or by providing a replacement (subsequent performance). If we decide to provide a replacement, ownership of the goods relating to the complaint shall pass to us. If the cost of subsequent performance is increased due to the fact that the customer moved the goods to a different location from the original place of delivery, the customer shall bear the additional cost.
If the item is defective and if the customer has itself installed said item into another item (or had it installed) or attached it to another item (or had it attached) in accordance with said item’s nature and intended purpose, then we, where a justified claim for subsequent performance is brought against us by the customer, shall be entitled to choose within a reasonable period of time whether to compensate the customer for the work required for removing the defective item and installing or attaching the rectified item or for the defect-free replacement item (“Work”), or shall perform this Work ourselves or have this Work performed at our own expense (“Self-performance”). If we fail to exercise this right within a reasonable period of time, it shall expire. If we opt for Self-performance, the Customer shall be entitled to set a reasonable time period for such performance. Should said time period expire without results, then the Customer is entitled to have the corresponding works conducted or conduct the works itself. In this case, our right to Self-performance shall expire and the Customer may carry out these Works themselves or have them carried out. We shall then be required to reimburse the Customer for the costs incurred as a result of the Works. Our right to reject the kind of remedy due to its disproportionate expense, as per Section 439 (4) of the German Civil Code, (BGB) remains unaffected. If the Customer conducts the work itself or has the work performed by a contractor, then it must note that its claim for compensation applies only to necessary expenditures. The Customer should therefore, in its own interests, keep the costs to a minimum and look for a cost-effective solution.
If the cost of subsequent performance, including the required work claimed by the customer, is disproportionate (as defined in Section 439 (3) of the German Civil Code (BGB)) – in particular compared to the purchase price of the goods in proper condition and taking into account the significance of the lack of conformity – we are entitled to refuse subsequent performance and compensation for that work.
e) Where the further statutory requirements are met, the customer is entitled to reduce the purchase price or rescind the contract.
f) Warranty claims brought by the customer shall become time-barred twelve (12) months after the passing of risk. This does not apply to claims for defects of a building or a thing that has been used for a building (Section 438 (2) BGB); these claims become time-barred five years after the passing of risk. The above reduced limitation period does not apply to claims for damages that are based on a defect of the item sold or a breach of a subsequent performance duty. This shall not affect the period of limitation for recovering from the supplier as provided for under Sections 445b and/or 478 BGB.
5. Proprietary rights
a) Tools, samples, drafts, drawings, cost estimates and similar documents manufactured or prepared by us remain our property without restriction, even if a part of their cost was charged to the customer; our rights to freely dispose of and use them remain in effect. We do not have a duty to keep tools for unduly long periods of time. Access to the aforementioned items may not be provided to third parties without our consent. Drawings and other documents that are part of quotes shall be returned to us upon request.
b) Where we have manufactured and supplied items based on drawings, models, samples or other documents provided by the customer, the customer warrants that there is no violation of industrial property rights or copyrights of third parties. Where third parties prohibit the manufacturing and delivery, in particular, with a reference to such proprietary rights, we are entitled to cease all activities immediately and claim damages from the customer without being obligated to review the legal issues involved. Irrespective of this, the customer agrees to indemnify us against all related claims brought by third parties based on the violation of proprietary rights.
6. Retention of title
a) We will retain the title to the products delivered until all claims from the business relationship with the customer are settled in full.
b) Any processing or treatment of the goods subject to retention of title by the customer will always be performed on our behalf, without creating any obligations for us. We are entitled to ownership of the new items in their respective state of processing or treatment. If our goods subject to retention of title are processed, treated, mixed or combined with other products that are not owned by us, we will acquire a (co-)ownership interest in the new item based on the share of invoice price of the goods subject to retention of title compared to the invoice price of the other products.
c) The customer may sell the goods subject to retention of title in which we hold a sole or co-ownership interest in the normal course of business; it must not pledge or assign the goods as collateral. The customer assigns to us now and in advance all claims it is entitled to from the resale of the goods subject to retention of title or the products resulting from the processing, treatment, mixing or combination. This also applies if the products are sold with other products that are not owned by us at a combined price. If, pursuant to a legal regulation, a third party has acquired ownership or co-ownership interests in the products as a consequence of the processing, treatment, mixing or combination, the customer hereby assigns to us in advance any claims the customer may have against that third party. Assignments for purposes of this paragraph are made only up to the amount of the invoice price of the reserved goods. The Customer may collect the assigned claims until such permission is revoked; the permission may be revoked at any time.
d) We accept now the assignments of the customer provided for in this Section.
e) We undertake to release the collateral that we are entitled to based on the foregoing provisions upon the customer’s request at our discretion and to the extent that their value exceeds the claims to be secured by more than 10%.
f) If the customer’s cooperation is required to make the retention of title effective, for example with regard to registrations that are required in accordance with the law of the country in which the purchaser is located, the customer shall perform such acts.
g) If the customer is in default of payment, we may prohibit it from disposing of the goods subject to retention of title completely or, at our discretion, in part, e.g. only with regard to selling or further processing, etc.
h) If the customer meets the objective requirements of the duty to file for insolvency, it shall refrain from disposing of the goods subject to retention of title in any way, without specifically being requested to do so. The customer shall report the inventory of goods subject to retention of title to us without undue delay. In this event we are also entitled to withdraw from the agreement and demand the return of the goods subject to retention of title. If the goods subject to retention of title have been processed, treated, mixed or combined with other products, we are entitled to demand that they be surrendered to a trustee; the customer has a duty to disclose all co-owners of the goods subject to retention of title, including their names or company names, addresses, and co-ownership shares. The same, by analogy, applies to the claims that have been assigned to us in accordance with the previous paragraphs; in addition, the customer shall send us the names and addresses of all debtors and a copy of the documents evidencing the claims against them without specifically being requested to do so.
7. Payment terms
a) Unless otherwise agreed, payments are due within 30 days of the date of invoice without deductions. We offer a 2% discount for payments made within 14 days of the date of invoice.
b) Unless otherwise agreed, the customer is in default of payment with respect to our claims where payments are not made by the 30th day of the date of invoice (Section 284 (2) BGB). Default interest will be charged at 9 percentage points above the base rate. In addition, we may claim default damage at a flat rate of EUR 40.00. We reserve the right to claim compensation for any further default damage.
c) Unless otherwise specified by the customer, payments will be applied to the oldest open invoice, including any related accessory claims.
d) We only accept cheques and bills of exchange if this has been agreed in advance (charging all collection expenses and discount charges, which are payable immediately), and only as payment.
e) The customer may only offset counter-claims against our claims if they are undisputed, unappealable or if there is a relationship requiring reciprocal performance (Section 320 BGB) between those claims and the claims asserted by us.
f) The customer may only exercise a right of retention if it is based on the same contractual relationship as our claim.
8. Exclusion of claims for damages
a) Claims for damages of any kind against us or our legal representatives or persons employed by us in the performance of our obligations shall be limited to damage resulting from intentional acts or gross negligence or the breach of a material contractual duty. In this context, a “material contractual duty” is defined as any duty, the fulfilment of which is a prerequisite for the proper performance of the contract and upon compliance with which the customer may regularly rely.
b) Liability is limited to compensation for the damage foreseeable at the time of the conclusion of the contract which is typically incurred with this type of contract unless the damage was caused intentionally.
c) The aforementioned liability limitations and exclusions do not apply to liability under the German Product Liability Act or injuries to life, limb and health.
d) Any claims of the customer for reimbursement of expenses pursuant to Section 284 BGB are waived insofar as claims for damages in lieu of performance are excluded according to the foregoing provisions.
e) The provisions of this Section 8 do not change the statutory burden of proof.
9. Data protection
We have a right to electronically store and process all data about the purchaser that are required for processing the transaction in compliance with the regulations of the German Federal Data Protection Act.
10. Applicable law
All legal relationships between us and our customer shall be governed by German law exclusively. This applies to both the conclusion and the performance of the contract. The United Nations Convention on Contracts for the International Sale of Goods does not apply.
11. Place of performance and venue
a) The place of performance for all deliveries and payments is our registered office in Schwarzenbek.
b) The following applies if the customer is domiciled in the EU or the European Economic Area: If the customer is a businessman, a legal entity under public law or a special fund under public law, or does not have a general place of jurisdiction in Germany, exclusive venue lies in Schwarzenbek where our registered office is located. On the other hand, if the customer’s registered office is located outside of the EU and the European Economic Area, all disputes arising under and in connection with the contracts concluded subject to the applicability of these General Terms and Conditions shall exclusively be settled by the court of arbitration of the chamber of commerce of Hamburg. Its decisions are final and there is no recourse to the ordinary courts. The proceedings, in particular the taking of evidence, shall be conducted pursuant to the Rules of the Court of Arbitration of the Hamburg Chamber of Commerce and the rules of Book 10 of the German Code of Civil Procedure (Zivilprozessordnung). Procedural principles of common law, including, without limitation, regarding the production of documents, do not apply (neither directly nor by analogy).
© 2018 FLAG Germany GmbH
All rights reserved. No part of this document may be reprinted without special permission.