Terms & Conditions

General Business Terms and Conditions / Terms and Conditions of Supply 09/2016

 

1. General

These GTCs are applicable to all business transactions between FIMA Maschinenbau GmbH and its Purchasers, even if no specific reference is made to the GTCs in subsequent agreements. These terms of sale and delivery shall apply exclusively. Any recognition or acceptance on our part of any Purchaser conditions that differ from the conditions hereof shall be excluded, except we have expressly in writing indicated that such Purchaser conditions apply. Our GTCs shall also apply if we effect deliveries, without reservation, in the awareness of contradictory or deviating terms and conditions of purchase.

 

2. Offer

(1) Any offer on our part shall be nonbinding. They merely constitute an invitation to the Purchaser to make a corresponding offer to us by way of placing an order. Purchaser orders constitute binding offers.

(2) Insofar as any offer is drawn up based on Purchaser documentation (pictures and drawings, including measurements) such documentation shall be binding only if it is expressly referred to in the offer. In such cases, each piece of information provided by the Purchaser shall be taken into consideration individually, except the Purchaser’s documentation refers to such information as a whole. In other words, any reference to one or more pieces of information shall not be deemed to include all remaining pieces of information.

(3) We shall retain title and copyright to all photographs, graphics, drawings, calculations etc. that form part of any bid. Any reproduction of such documentation, or making such documentation available to any third party in any other fashion, shall be prohibited without our express prior written consent.

(4) Any changes or ancillary agreements in respect of any order or the conditions hereof shall be subject to our written confirmation.

 

3. Prices; terms of payment

(1) Unless otherwise agreed, stated prices shall in all cases be on an ex works (EXW) basis (within the meaning of Incoterms 2010).

(2) Stated prices shall exclude packing costs, which shall be subject to an additional charge and shall be itemized on each invoice.

(3) Stated prices shall furthermore exclude shipping costs, which shall be subject to an additional charge and shall be itemized on each invoice.

(4) Insofar as the Purchaser wishes to obtain shipping insurance, we shall obtain such insurance for the Purchaser and in the Purchaser’s name, and shall bill the Purchaser for such insurance at cost.

(5) The legally applicable value added tax (VAT) shall not be included in stated prices and shall be charged in addition to the product price in accordance with the rate that is applicable on the date of issuance of the invoice.

(6) Unless otherwise agreed, invoice payments shall be due without deduction 30 days following the invoice date.

 

4.Purchaser default

(1) The Purchaser shall be deemed to have defaulted in any of the following cases:

(a) the Purchaser fails to effect payment on the final day of the payment deadline,

after having received a reminder that postdates such final day .

(b) the Purchaser fails to effect payment on or before the contractually mandated

payment due date, after we have set a reasonable grace period for such payment.

(c) the Purchaser fails to accept the products by the provided date.     

(d) in any instance prescribed by law.

(2) Insofar as the Purchaser fails to accept the products by the provided date, we shall be entitled to file a claim against the Purchaser for any damages resulting from such default, as well as any additional expenses and/or storage costs incurred by us attributable to such default. The foregoing shall be without prejudice to our right to assert any further claim.

(3) In the event of any Purchaser default (and without prejudice to any substantiated claim for greater damages), the Purchaser shall be charged interest amounting to 8 percent annual interest above the European Central Bank base interest rate, pursuant to Article 288 II of the German Civil Code (BGB).

 

5. Deliveries; delivery deadlines

(1) The delivery periods and dates stated by us are provisional periods and dates and are non-binding. We have no liability for delayed deliveries.  Delivery periods and dates are only binding for us if it has explicitly stated or confirmed in writing that they are binding.

(2) The commencement of any delivery period set by us shall be subject to prior clarification of all technical, commercial and logistical matters, as well as prior submission of any required official permit or authorization. If the Purchaser culpably defaults on the Purchaser’s duty to cooperate, we shall be entitled to file a claim against the Purchaser for any damages resulting from such default, including any additional costs and/or storage costs incurred by us attributable to such lateness. The foregoing shall be without prejudice to our right to assert any further claim.

(3) Any given delivery deadline shall be deemed to have been met if the Purchaser is able to access the products in question on or before such deadline, or the Purchaser received notification that the products in question are ready for shipment.

(4) Any default on a delivery deadline shall be excluded insofar as any delivery delay is attributable to force majeure, significant operational matters, or any event that is beyond our control and that is not attributable to us. Any negligence or fault on the part of any of our agents or representatives shall be our responsibility.

(5) Part deliveries and partial performance are admissible.

 

6. Passing of risk; place of performance

(1) Except otherwise agreed, passing of risk shall occur no later than upon placement of the order in question, or upon issuance of notice of our readiness for the Purchaser to accept the deliverables EXW.

(2) We shall be entitled to assert a claim for loss or damages if the Purchaser is in default of acceptance. On commencement of any default of acceptance, the risk of any accidental loss or/and deterioration of the deliverables in question shall pass to the Purchaser.

(3) Risk for partial deliveries shall be transferred to the Purchaser when the relevant deliverables are made available to the Purchaser.

(4) The place of performance for deliveries and payment shall in all cases be Obersontheim-Oberfischach.

 

7. Liability for defects

(1) Our liability for defects depends, first and foremost, on the contractually-agreed product quality. Agreed quality pursuant to Article 434 of the German Civil Code (BGB) is deemed to be the specifications on the relevant manufacturer data sheets. The information that we provide concerning the attributes of our products shall be consistent with our measurements and calculations, and shall qualify as the contractual attributes of such products but not as guaranteed attributes or as guarantees within the meaning of Article 433 of the German Civil Code (BGB).

(2) The validity of any Purchaser defect claim shall be contingent upon the Purchaser having duly met its obligations in respect to inspection and product testing and the Purchaser having issued a notice of defects without delay as provided in Article 377 of the German Commercial Code (HGB). The Purchaser’s defect notification must include details of all defect symptoms and the defective product.

(3) In case ten days or more elapse following receipt of the products in question without the Purchaser having confirmed such receipt, the products shall be deemed to be free of defect and shall be deemed to have been accepted, except insofar as (a) the Purchaser is able to prove that any concealed defect was involved; and (b) notification of such defect is issued promptly after being discovered.

(4) In the event of a defect, the purchaser shall be entitled to request supplementary performance. We can decide in equitable discretion that we take either one of the following corrective actions: (a) provide a new, defect-free product; or (b) eliminate the defect in question. The Purchaser shall grant us the necessary time and opportunity for subsequent performance to eliminate such defect and in particular hand over the defective. We shall acquire title to any replaced item.

(5) If we are not willing or able after two separate occasions and after a reasonable period of time to render supplementary performance the Purchaser may at its sole discretion either withdraw from the contract or demand a reduction of the purchase price. This also applies if supplementary performance fails or is deemed to be unreasonable by the Purchaser. The Purchaser has no right to withdraw from the contract in case of negligible defects.

(6) Return consignments of defective products to us for the purpose of supplementary performance may only be effected after obtaining prior written consent of us. We shall be under no obligation to accept delivery on any product that is returned without our prior authorization. The Purchaser shall defray the return shipping costs in such a case.

(7) The statutory period for defect claims shall be 12 months following the passing of risk. Replacement parts and repairs shall be warranted for 12 months. The foregoing notwithstanding, such warranty shall remain in effect, at a minimum, until expiration of the original warranty period for the item in question.

(8) Any application of the said contractual statutory periods shall be excluded in any of the following cases: (a) in the event of premeditated action or willful concealment in respect of any defect on our part; (b) insofar as we have guaranteed the attributes of the product in question; (c) insofar as a longer statutory period is prescribed by law, pursuant to the following Articles of the German Civil Code (BGB): 438(1)(2); 479(1); 634a(1)(2). The foregoing shall be without prejudice to the statutes and regulations governing suspension, limitation or recommencement of the statutory period.

(9) The statutory period of the applicable law shall apply to any damage claim of any kind if that is unrelated to any defect.

 

8. Disclaimer

(1) Any warranty for any damage resulting from any of the following elements in particular shall be excluded:

(a) unsuitable or improper use; improper mounting and/or commissioning by the Purchaser

or a third party; normal wear and tear; improper or negligent handling; any use of improper

operating materials, replacement materials; chemical, electrochemical and similar factors

that are not attributable to any negligence or fault on our part.

(b) No warranty shall be granted for any expendable parts that exhibit any defect that is

attributable to use and whose advent postdates the passage of risk.

(c) Our warranty shall be null and void insofar as any machine/installation is not set up

and/or commissioned by our personnel, except the Purchaser can prove that the

defect in question is not attributable to setup and/or commissioning by a third party.

 

9. Liability

(1) We have unlimited liability for damages due to breach of warranty or injury to life, limb and health. The same applies to deliberate acts and gross negligence, statutory out liability for product defects (in particular under the German Product Liability Act (Produkthaftungsgesetz) and liability for failure to disclose a defect. In cases of simple negligence, we are only liable for breach of a fundamental contractual obligation derived from the nature of the contract. Fundamental contractual obligations are obligations which are essential to the proper performance of the contract and which the Purchaser may routinely expect to be met. Such fundamental contractual obligations on our part include material obligations such as the supply of defect-free products, as well as advisory, protective and custodial obligations which enable the Purchaser to use the products for the contractually agreed purpose, or which protect the Purchaser and its employees’ life or health, or which product the Purchaser’s property from substantial damage. Breach of contract of the Purchaser shall be deemed to have occurred insofar as the action in question jeopardizes fulfillment of the purpose of the contract, including but not limited to the following actions: substantial lateness in payment or acceptance; substantive default on our duty to cooperate and/or provide information; breach of any duty that is indispensable for the validity and existence of the contract.

(2) In the event that fundamental contractual obligations are breached, delayed or impossible to perform our liability extends to typical and foreseeable damages.

(3) Our liability under product liability law shall be limited to liability for wrongful breach of contract, willful concealment of defects, and/or any warranty we may have granted for specific product attributes.

(4) Unless otherwise agreed in the foregoing provisions our liability is excluded.

 

10. Retention of title

(1) All products remain our property until payment arising from or in connection with our contract with the Purchaser has been effected in full of all receivable. The Purchaser is only permitted to sell the products to which title is retained in ordinary course of business. The Purchaser is not entitled to pledge the products to which title is retained, to transfer title to the products as collateral or to dispose of them in any other way which would jeopardize our title to them. The Purchaser hereby assigns claims associated with the sale of the products an all ancillary rights to us, irrespectively of whether the products to which title has been retained are sold before or after processing. We hereby accept the assignment.  Insofar as the Purchaser purchases any product from us for purposes of resale, the Purchaser shall be entitled to use such product solely in a manner that is consistent with the Purchaser’s normal business operations. In this regard, the Purchaser hereby assigns to us all of the Purchaser’s future claims against the Purchaser’s customers arising from such resale. We hereby accept such assignment.

(2) When products are delivered to countries with other legal systems in which retention of title pursuant to this section 10 does not have the same effect of providing security that it does in Germany, the Purchaser hereby grants us an appropriate security interest. If further declarations or actions are necessary in this connection, the Purchaser shall make such declarations and take such actions. The Purchaser shall support all actions which are necessary and helpful in ensuring the effectiveness and assert ability of such security interests.

(3) The Purchaser undertakes to handle its purchased products with due care for as long as title is retained. In particular the Purchaser undertakes to take out adequate insurance at it’s own expense against fire and water damage, as well as theft. Such insurance shall cover the replacement cost of the products. Insofar as the Purchaser is unable to provide proof of insurance at our behest, we shall be entitled to insure the deliverables, at the Purchaser’s cost and expense, against theft, breakage, fire, water damage and any other loss or damage, until such time as such insurance has been paid up in full. The Purchaser shall realize any maintenance and/or inspection work that is necessary in good time and at the Purchaser’s cost and expense.

(4) The Purchaser shall be prohibited from either pledging the deliverables or assigning them as surety. The Purchaser shall inform us without delay of any pledging, confiscation, or other third party action of this nature in respect of the deliverables. If such third party is unable to reimburse us for the court costs arising from a lawsuit pursuant to Article 771 of the German Code of Civil Procedure (ZPO), the Purchaser shall indemnify us for such costs.

(5) In the event of any wrongful breach of contract on the part of the Purchaser, and in particular any past-due payment, we shall be entitled to assert our right to retention of title in respect of the products in question, subject to issuance of a prior warning. In such a case, the Purchaser shall surrender the products in question. We shall be entitled to sell any deliverables that we have taken back. The proceeds from the sale of such deliverables shall be deducted from the amount owed by the Purchaser, minus a reasonable realization fee.

(6) Any assertion, on our part, of the right to retain title and/or any pledging of the deliverables by us shall not constitute cancellation of the contract.

 

11. Force majeure

(1) Either Party shall be entitled to suspend fulfillment of their contractual duties in case any instance of force majeure precludes such fulfillment or renders it unreasonable. The following types of events shall come into play in this regard in particular: labor strikes; any circumstances beyond either Party’s control such as any fire, war, mobilization of military forces, insurrection, embargo, export restriction, epidemic, natural disaster, extreme natural phenomenon, terrorist act.

(2) The Party that invokes force majeure shall notify to the other Party, promptly and in writing, the beginning and end of the instance of force majeure in question. If a Party fails to effect such notification, the other Party shall be entitled to file a claim for reimbursement of all supplemental costs incurred by such other Party as a result of such instance of force majeure. The Parties shall furthermore advise each other as to which reasonable measures should be taken.

 

12. Assignment
Any assignment of the Purchaser’s rights and/or duties arising from this contract shall be subject to our prior written consent.

 

13. Right to offset and withhold payments

(1) Any Purchaser right to offset any amount due us (receivable) shall be excluded, except such amount due us (receivable) is undisputed or has been upheld in a court of law.

(2) The Purchaser shall be entitled to assert the right to withhold payment only if such right pertains to one and the same contractual relationship.

 

14. Applicable law; place of jurisdiction

(1) German substantive law shall apply, to the exclusion of (a) German conflict-of-law principles; and (b) the UN Convention on Contracts for the International Sale of Goods (UNCITRAL, CISG).

(2) The place of jurisdiction shall be Stuttgart, whereby we shall nonetheless be entitled to bring legal action against the Purchaser in the Purchaser’s general court of jurisdiction.

 

 

Oberfischach, 22.09.2016