Standard Contracting Terms and Conditions of Flammer GmbH
§1. General Provisions
(1) All deliveries, services and work, and all offers are governed solely by these General Terms and Conditions. They are a part of all contracts which we conclude with our contract partners about deliveries or services and work. They also apply to all future deliveries, services and work, and offers to customers even if they are not agreed again separately.
(2) Terms and conditions of the customer or third parties shall be inapplicable even if, in a particular case, we do not assert that they do not apply. Even a reference by us to a letter that contained or referred to the customer’s or a third party’s general terms and conditions would not establish that we agreed that the said general terms and conditions were applicable.
(3) These General Terms and Conditions apply solely to entrepreneurs within the meaning of §14 BGB (German Civil Code), legal entities of public law and special funds under public law.
§2. Offer and Formation of Contract
(1) Our offers are not binding on us. Contracts are not finalized and binding until the customer has received a written order confirmation. The content and extent of the contract shall be determined by our written order confirmation. The same shall also apply to any ancillary agreements, modifications, supplements, etc.
(2) The documents which belong to the offers such as illustrations, drawings, information on weights or measures, and other technical data, as well as other internal, German or foreign standards referred to shall only identify the subject matter of the contract.
(3) We reserve the ownership rights and copyrights to the illustrations, drawings, calculations and all other documents that have been prepared by us and are related to the order. They may be made accessible to third parties only with our written consent.
(4) We reserve the right to modify and improve design, materials used and quality on the basis of technological progress insofar as the subject matter of the contract is not materially altered and the modification does not appear to be unreasonable for the customer.
§3. Prices and Payment
(1) The prices apply to the extent of services and deliveries specified in the order confirmation. They are based on the state of the art and the pertinent regulations and other provisions of safety technology that were applicable when the offer was made.
(2) Our invoices are payable within 30 days without prompt payment discounts or other deductions unless some other agreement is in place. The date of invoice is the date that determines the due date.
(3) If the customer defaults on a payment or fails to meet its payment obligations otherwise, say because a check or draft is not honored, then 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 drafts that have been accepted but are not yet due.
(4) If the customer fails to make any payment when due, we shall be paid interest at a rate of 4% p.a. above the basic interest rate as of the due date on any unpaid amounts; our rights to claim a higher interest rate and additional damages if the customer defaults on any payment shall remain unaffected.
(5) Moreover, we have the right to delay execution of deliveries and/or performance of services until the customer has paid in advance or provided security.
(6) The customer has the right to withhold payments and offset counterclaims against our claims to the extent that the counterclaims are not disputed or have been established by a final court ruling.
§4. Delivery and Delivery Time
(1) Deliveries are made ex works.
(2) All periods of time and dates specified by us for deliveries and services are meant to be approximate unless a definite period of time or date has been promised or agreed explicitly. The time periods and dates for deliveries apply to the time at which the goods are handed over to the forwarder, carrier or other third party entrusted with transporting the goods or they apply to the time at which the customer is notified that the goods are ready for dispatch.
(3) The delivery time is implied by our order confirmation, which is authoritative in this respect. Compliance by us with this delivery time presupposes clarification of all commercial and technical questions with the customer and fulfillment of all obligations that are incumbent on the customer, such as obligations to provide required commercial or governmental certificates or approvals and/or to pay a contractually agreed down payment.
(4) If dispatch or acceptance of our product is delayed for reasons for which the customer can be held responsible, then we shall charge the customer the costs that have arisen from such delay, commencing one month after we notified the customer that the product was ready for dispatch or acceptance.
(5) If deliveries are not made or are delayed for reasons for which we cannot be held responsible, and/or if deliveries of essential materials to us are not made or are delayed, then we shall have the right to deliver our product with a corresponding delay or to withdraw from the contract in whole or in part. We shall notify the customer of the beginning and end of any such circumstances as soon as possible.
§5. Place of Performance, Dispatch, Packaging, Passage of Risks, Acceptance
(1) The place of performance for all obligations that arise from the contractual relationship is Heilbronn unless provided otherwise.
(2) The method of shipping and packaging shall be determined by us after due assessment of the circumstances unless something else has been agreed. The risks shall pass to the customer, at the latest, when the delivery item is handed over to the forwarder, carrier or other third party entrusted with transporting it, in which case the risks pass when loading begins. The same shall also apply if partial deliveries are made or we have agreed to perform additional services, such as paying the freight costs or making the delivery. If acceptance is required, this shall be the time of passage of risks.
(3) If dispatch or acceptance does not take place or is delayed for reasons for which we are not responsible, the risks shall pass to the customer on the day on which we notify the customer that the delivery item is ready for dispatch or acceptance.
(4) The delivery item shall be insured by us against theft, breakage, damages in transit, fire damages, water damages and other insurable risks only upon express request of the customer and at its expense.
(5) Shipment and other packaging materials, with the exception of reusable pallets, are not taken back. The customer is under the obligation to dispose of the packaging materials at its own expense.
(1) The warranty period is one year from date of delivery or, if acceptance is required, one year from date of acceptance. This does not apply insofar as the law, for example pursuant to § 438 par. 1 no. 2 BGB (German Civil Code – buildings and things for buildings), prescribes longer limitation periods.
(2) The delivered items shall be examined carefully immediately after delivery to the customer or third party specified by the customer. They are deemed to have been approved unless we have been notified in writing of obvious defects or other defects which were identifiable during an immediate and careful examination and this notification was received within seven workdays after delivery of the item or otherwise within seven workdays after discovery of the defect or within seven days after the earliest time at which the defect could have been identified by the customer without a separate investigation, assuming normal usage. Delivery items for which a complaint has been lodged shall, upon request by us, be returned to us with freight prepaid. If the complaint proves to be justified, we will refund the cost of the least expensive shipping method insofar as the cost was not increased because the delivery item to be returned was located at a place other than the one at which it had intended to be used.
(3) In cases of material defects in items that have been delivered, first we are obliged and entitled to choose within a reasonable period of time between remedying the defects and delivering replacement items. If this does not work, that is, if both defect removal and replacement deliveries are impossible, unreasonable, refused or delayed for an unreasonable period of time, then the customer may withdraw from the contract or reduce the price by a reasonable amount.
(4) If we are at fault for the defect, the customer may demand compensation for damages if the prerequisites of § 8 are fulfilled.
(5) In the case of defects in components from other manufacturers which we are not able to remove, either in fact or because of licensing laws, we shall, as we may choose, assert the warranty claims against the manufacturer(s) and supplier(s) for the customer’s account or assign them to the customer. Warranty claims against us exist in cases of such defects under the other prerequisites and in accordance with these General Terms and Conditions only if getting these claims against the
manufacturer and supplier enforced through the courts was unsuccessful or has become hopeless (for example, because of a bankruptcy). The limitations period for the customer’s said warranty claims against us cannot expire or be shortened during such proceedings against the other manufacturer and supplier.
(6) The warranty ceases to apply if the customer changes the delivered item or has it changed by a third party without our consent and this makes defect removal impossible or unreasonably more difficult. In any case, the customer will have to bear the resulting additional costs for removing the defect.
(7) Agreements with customers in individual cases regarding delivery of used items are not covered by a material defects warranty of any kind.
§7. Intellectual Property Rights
(1) We guarantee that no delivery items are encumbered by any intellectual property rights or copyrights of third parties. Each contracting partner will notify the other in writing and without delay if any claims based on violation of such rights are asserted against it.
(2) In the event that a delivery item does in fact violate an intellectual property right or copyright of a third party, we shall, as we may choose, and at our expense, either modify or replace the delivery item in such a way that the contractually agreed functions continue to be fulfilled, but without any rights of any third parties being violated any more, or we shall enter into a licensing agreement that provides the customers with a suitable usage right. If we fail to succeed in doing so within a reasonable period of time, then the customer is entitled to withdraw from the contract or reduce the price by a reasonable amount. Claims by customers to compensation for damages, if any, are subject to the restrictions of § 8 of these General Terms and Conditions.
(3) If this is not possible on economically reasonable terms and within a reasonable period of time, then the customer shall be entitled to withdraw from the contract. We too are entitled to withdraw from the contract if these prerequisites are fulfilled.
§8. Liability for Damages
(1) Our liability − regardless of its legal grounds, including legal grounds based on 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
a.) in the event of ordinary negligence of our executive bodies, legal representatives, employees or other assistants;
b.) in the event of gross negligence of our non-managerial employees and other vicarious agents
unless it is a question of breach of essential contractual obligations. Essential obligations include the obligation to deliver and install delivery items punctually and without defects as well as advisory, protective and custodial obligations which are intended to make it possible for the customer to use the delivery items in accordance with the contract, to protect the health and life of the personnel of the customer and third parties and to protect the customer’s property from substantial damages.
(2) To the extent that we are generally liable for damages pursuant to § 8, 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 he should have foreseen under consideration of the circumstances he had knowledge of or should have had knowledge of had he applied the normal standard of care. Indirect damages and consequential damages which result from defects of a delivery item are recoverable only to the extent that such damages are typically to be expected to occur when the delivery item is used only as intended.
(3) 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 EUR for each damage incident even if an essential contractual obligation has been breached.
(4) 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 vicarious agents.
(5) Insofar as we provide technical information and/or advice and this technical information and advice is not included in the services owed by us under the contract, then such information or advice is provided free of charge and without any liability whatsoever.
(6) The limitations of this § 8 shall not apply to liability for intentional misconduct, guaranteed quality specifications, loss of life, bodily injury, damage to health, or to liability under the Product Liability Act.
§9. Retention of Ownership
(1) The following agreement on retention of ownership serves to secure all current and future claims of ours against the customer that arise from the contractual relationship between our contracting partner and us.
(2) All items that are delivered by us continue to be property of ours until all debts due under the business relationship with the customer have been paid in full (“conditional delivery items” / “conditional goods”).
(3) If conditional delivery items are processed with or connected to other items not owned by us, then we shall acquire a joint ownership interest in the newly created items equivalent to the value of the said delivery items in proportion to the value of the other items at the time of such processing, connection, etc. The items created by such processing, connection, etc., shall be governed by the provisions that apply to conditional delivery items.
(4) The customer may sell conditional goods in the ordinary course of business, but may not under any circumstances assign them to any third party as security.
(5) If the goods are sold in the ordinary course of business, the paid purchase price shall take the place of the goods. The customer now, in advance, assigns to us all claims arising from any such sale in an amount equal to the total of our invoice, including value added tax. The customer is authorized to collect these receivables as long as it meets its payment obligations to us. In the event of default we are entitled to revoke this authorization to collect.
(6) In consideration of the extended retention of ownership (advance assignment of purchase price payment claims), any assignment to any third party, particularly to a bank, would constitute a breach of contract and is consequently not allowed. We may, at any time, check the customer’s sales documents and inform its buyers of this advance assignment.
(7) If the value of the collateral securities pursuant to the foregoing provision will exceed the amount of the unpaid debts secured thereby by more than 20% for the foreseeable future, the customer may demand that we release collateral securities to the extent of this excess amount.
(8) The customer expressly grants us the right to take back conditional goods and to enter into its rooms, facilities, workspaces, etc., for this purpose, without this constituting withdrawal from the contract. To withdraw from the contract, we would have to issue a written statement to that effect.
§10. Return of goods
Goods returned by the customer have to be free from damages and have to correspond to the conditions of delivery. The contractor brings an adequate handling fee into account to the customer.
§11. Notes regarding data handling
The customer herewith takes note of the fact that the seller stores data related to the contractual relationship for data processing purposes, in accordance with § 28 of the German Federal Data Protection Act, and that the seller reserves the right to transmit such data to third parties, such as insurance companies, insofar as this is required in order to fulfill the contract.
§12. Closing Provisions
(1) The place of jurisdiction for all disputes arising from the business relationship between the customer and us is Heilbronn. Heilbronn is the only place of jurisdiction for lawsuits against us. Mandatory statutory regulations about sole places of jurisdiction are not affected by this.
(2) The relationship between the customer and us shall be governed solely 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.
(3) If it turns out that the contract or these General Terms and Conditions contain any gaps of regulation these gaps shall be deemed to be filled in with legally effective regulations which the contracting parties would have agreed in accordance with the contract’s economic objectives and the purpose of these General Terms of Business, had they been aware of these gaps from the start.
(4) If individual regulations of these General Terms and Conditions are or become ineffective, this shall not affect the effectiveness of their remaining regulations.
(5) Changes, side agreements and/or supplements must be made in writing to take effect. This also applies to waivers of this requirement for written form. Individual agreements always take precedence over these General Terms of Business.
In case of dispute, the German text shall be prevail.