Standard Contracting Terms and Conditions of Flammer GmbH
§1. General Provisions
All deliveries, services and work, and all offers are exclusively governed by our standard contracting terms. We disacknowledge any terms and conditions used by the customer which are inconsistent with or which differ from our standard contracting terms unless we have explicitly assented to their applicability. Our standard contracting terms shall also govern all future deliveries, services and work, or offers to the customer even if they are not separately reagreed upon.
Contracting terms of the customer or any third party shall be inapplicable even if we have failed to separately disagree with them in any particular case. Our failure to express our disagreement with any of the customer’s terms of purchase orders or other contracting terms shall by no means be construed as agreement. Even if we refer to a document which includes contracting terms of the customer or any third party or which includes a reference to such contracting terms, our referring to such a document shall not be construed as agreement with the applicability of those contracting terms.
Provisions which have been individually agreed upon as part of the contractual relationship shall prevail over the standard contracting terms and conditions. Our written confirmation shall be required for all changes, ancillary agreements or amendments within individual agreements. Should any provision of our Standard Contracting Terms and Conditions be or become invalid in part or in full, the validity of the other provisions shall not be affected thereby.
§2. Offer and Formation of Contract
Our offers are not binding on us. No agreement entered into shall be binding until the customer has received a written acknowledgment of the order from us. The content and extent of the agreement shall be determined by our written acknowledgment of the order. The same shall apply to any ancillary agreement, modification, amendment, etc. Documents accompanying the offers such as illustrations, drawings, information on weight or measures, or other technical data, and internal or German or foreign standards made reference to shall only identify the subject matter of the agreement. We reserve our ownership rights and copyrights to illustrations, drawings, calculations or other documents prepared by us which are related to the order. They may only be made accessible to third parties with our written permission. We reserve the right
to modify or improve the design, the materials used, and the quality in accordance with technological progress provided that the subject matter of the contract is not materially altered and that the modification does not appear unreasonable for the customer.
§3. Price and Payment
The prices apply to the level and extent of services and supplies specified in the acknowledgment of the order.
They are based on the standards of state of the art science and technology or the regulations or other safety standards applicable at the time the offer is made. Unless agreed otherwise in any contractual provision, our invoices are payable without any discount within 30 days. The date of the invoice is the date determining the date of payment. If the customer defaults any payment or if it fails to meet its payment obligations otherwise, if, e.g., a check or draft is dishonored, we have the right to demand immediate payment of all claims against the customer regardless of any payment extension agreements in accordance with the maturity of accepted but not yet payable drafts. If the customer fails to make any payment when due, we shall be paid interest at a rate of 4% above the basic interest rate on any unpaid amount and our rights to claim a higher interest rate and additional damages if the customer defaults any payment shall remain unaffected. Moreover, we have the right to demand payment in cash or security for payment by the customer before delivering undelivered supplies or performing unperformed services. The customer only has the right to withhold any payment or to set-off counterclaims against our claims to the extent those counterclaims are undisputed or have been finally and unappealably established.
§4. Delivery and Time of Delivery
Delivery is made ex works.
Periods and dates for deliveries and services specified by us are always meant to be approximate only unless a fixed period or a fixed date has been promised or agreed upon. The periods and dates for deliveries are met as of the point in time at which the goods are handed over to the forwarder, carrier or other third party hired for shipping the goods or if the customer has been notified of our readiness to dispatch the goods.
The time for delivery is shown in our acknowledgment of the order which is determinative of the time of delivery. Our observing this time of delivery is contingent on the clarification of all commercial and technical questions with the customer and on the fulfillment of all of the customer’s obligations, such as providing the required commercial or governmental certificates or permits or on the payment of a contractually agreed upon down payment.
If the dispatch of the acceptance of our product is delayed due to reasons within the customer’s control, we will charge it the cost of such delay commencing one month after having notified the customer of our readiness of dispatch or acceptance.
If deliveries are not made or delayed due to circumstances beyond our control including delayed deliveries of essential materials to us by our suppliers, we shall have the right to deliver our product with a corresponding delay or to rescind the agreement in whole or in part. We will notify the customer of the beginning and of the ending of such circumstances as soon as possible.
§5. Place of Performance, Dispatch, Packaging, Passing of Risk, Acceptance
Heilbronn shall be the place of any performance under the agreement unless provided otherwise. The method of shipping and packaging is determined by us in our due discretion. The risk shall pass at the latest when the delivery item is handed over to the forwarder, carrier or other third party hired for shipping it (the relevant point in time being the beginning of the loading process). The same shall apply if partial deliveries are made or if we have agreed to perform additional services, such as paying the freight or making the delivery. If the delivery is required to be accepted and approved, the time of such acceptance and approval shall determine the passing of the risk.
If dispatch or acceptance and approval are either not made or delayed due to circumstances beyond our control, the risk shall pass to the customer on the day on which we have notified the customer of our readiness to dispatch or accept and approve the delivery item.
We shall only insure the shipment against theft, breakage, damages in transit, fire damages, water damages or other insurable risks upon the customer’s explicit request and at the customer’s expense. We do not take back any shipment packaging materials or other packaging materials. Reusable pallets are exempt hereof. The customer shall dispose of the packaging materials at its own expense.
The delivered items shall be carefully examined immediately after having been delivered to the customer or to any third party determined by the customer. They are treated as approved unless we have been notified in writing of obvious defects or other defects which were identifiable during an immediate and careful examination. The delivery item which has been rejected shall be returned to us with freight prepaid. If the notice of a defect is justified, the seller will refund the cost of the cheapest shipping method; this shall not apply to the extent that the cost is increased because the delivery item is located at another place than at the place at which it had been intended to be used.
We have the right to fulfill our warranty obligations either by remedying the defect or by delivering a replacement item. If we fail to remedy the defect or to deliver a replacement item, the customer is reserved the right to demand that the price be lowered (reduction) or, if it so chooses, to have the contract rescinded.
If any delivered item is defective, the customer shall allow us the time and opportunity required for remedying the defect or for delivering a replacement item.
The warranty ceases to apply if the customer modifies the delivered item or has it modified by any third party without the seller’s permission and if remedying the defect is made impossible or unreasonably more difficult thereby.
Within the limits of the statutory provisions and with due consideration of the exceptions made by applicable law, the customer is entitled to rescind the contract if we fail to remedy a defect or deliver a replacement item within a reasonable period fixed by the customer because of a defect. Minor defects shall only entitle the customer to a reduction of the price under the contract. The customer shall not be entitled to a reduction of the price under the contract under any other circumstances.
We accept no liability for inappropriate or improper use, faulty installation or commissioning by the customer or any third party, natural wear and tear, faulty treatment or negligent mistreatment, improper maintenance, improper operating materials.
Failure to observe the operating instructions made available by us results in a bar to any liability. If the customer or a third party hired by it tries to remedy the defect improperly, we shall not be made liable for the consequences resulting therefrom.
The same shall apply to any modification of the product made without our prior permission.
§7. Intellectual Property Rights
We guarantee that the delivered item is free from intellectual property rights or copyrights owned by third parties. Each party to this agreement shall notify the other party to this agreement in writing if any claims are asserted against it because of the violation of such rights.
In the event that the delivered item violates an intellectual property right or copyright of any third party, we will, at our choice and at our expense, either modify or replace the delivered item in a manner resulting in the discontinuation of violations of third party rights and at the same time having the delivered item continue fulfilling the contractually agreed upon purposes or obtain a right for the customer to use the delivered item by entering into a license agreement. If we fail to succeed in doing so within reasonable time, the customer shall have the right to rescind the agreement or to reasonably reduce the purchase price.
Any claims of the customer for damages shall be subject to the limitations set out under § 8 of these Standard Contracting Terms and Conditions.
If this is not possible at economically reasonable conditions or within reasonable time, the customer may rescind the agreement. Under the mentioned requirements, we have a right of rescission as well.
§8. Liability for Damages Caused by Fault
Our liability, regardless of its legal basis, including without limitation impossibility, default, delivery of a defective item or a wrong item, breach of contract, breach of duties during contract negotiations, and tortious acts is limited as provided under this § 8 to the extent that fault is a liability requirement.
We shall not be liable:
- in the event of ordinary negligence of our executive bodies, legal representatives, employees or other agents;
- in the event of gross negligence of our non-managerial employees or other agents unless the breach of essential contractual obligations is concerned. Essential obligations include the obligation to deliver and install ordered items timely and without defects and the obligations to provide consulting, protection, and safe custody, which are to enable the customer to use the delivered item as contractually agreed upon, or have the purpose of protecting body and life of the customer’s staff or of third parties or of protecting the customer’s property from substantial damages.To the extent that we are generally liable for damages, the amount of that liability shall be limited to damages which the seller foresaw as a possible consequence of a breach of contract or which it should have foreseen under consideration of the circumstances it had knowledge of or should have had knowledge of if it had applied the due standard of care. Indirect damages and consequential damages which result from defects of the delivered item are only recoverable to the extent that such damages are typically to be expected to occur while the delivered item is used as intended.In the event that we are liable for ordinary negligence, our liability for damages to property and persons shall be limited to an amount of 3 million euros for each damage event even if an essential contractual obligation has been breached.The above exemptions from and limitations on liability shall to the same extent apply for the benefit of the seller’s executive bodies, legal representatives, employees and other agents of the seller.If we provide technical information or advice and if that information or advice is not included in the contracted for services owed by us, then such information or advice is provided without any charges and without any liability.The limitations of this § 8 shall not apply to liability for intentional misconduct, warranted quality specifications, injuries to life, body or health, or on the basis of the Product Liability Code.
§9. Retention of Title
The delivered goods shall remain our property pending full payment of all debts due under the business connection with the customer. If any delivered item is processed jointly with or attached to other items not owned by us, then we shall acquire a joint ownership interest in the newly created item equivalent to the value of the item delivered by us in proportion to the value of the other items at the time of such processing, attachment, etc. The item created by such processing or attachment, etc., shall be governed by the same provisions as the item title to which has been retained when it was delivered by us.
The customer may resell the sold item in the ordinary course of the customer’s business. The goods shall by no means, however, be conveyed as collateral to any third party.
If the goods are sold in the ordinary course of the customer’s business, the paid purchase price shall replace the goods. The customer is now, already, assigning all claims arising from any such sale in an amount equal to the total of our invoice including value added tax to us. The customer is authorized to collect those receivables while it meets its payment obligations to us. In consideration of the extended retention of title (advance assignment of the respective purchase price payment claim), any assignment to any third party, particularly to a bank, is a breach of contract and, thus, prohibited. We may, at any time, check the customer’s sales documents and inform the customer’s buyer about the assignment. If the value
of any collateral security as provided for in the above provision exceeds the amount of the unpaid debts secured thereby by more than 20% for a foreseeable period, the customer may request us to release the collateral security to the extent of that excess value. The customer gives us express permission to recover the item title to which has been retained and to enter into rooms, facilities, workspaces, etc., for this purpose without our recovering the item being considered a rescission of the contract. The latter shall only apply if we explicitly make a written statement to that effect.
§10. Final Provisions
The venue of any litigation relating to the business relationship between us and the customer shall lie in Heilbronn.
Heilbronn shall be the exclusive venue of any suit brought against us. Mandatory statutory provisions on exclusive venues remain unaffected by this provision.
The relationship between us and the customer shall be exlusively governed by the laws of the Federal Republic of Germany.
The United Nations Convention on Contracts on the international Sale of Goods dated April 11, 1980, (CISG) shall not apply.
To the extent that the agreement or these Standard Contracting Terms and Conditions contain gaps, these gaps shall be deemed agreed upon to be filled with those legally valid provisions which the parties to the agreement would have agreed upon according to the financial objectives of the agreement and the purpose of these Standard Contracting Terms and Conditions if they had been aware of that gap.
The customer acknowledges that the seller stores data related to the contractual relationship in accordance with German Federal Data Protection Act section 28 for data processing purposes and that the seller reserves the right to disclose that data to third parties (e.g., insurance companies) as far as required for the performance of the agreement.