Fluor Technik System GmbH
Managing Director Bernd Möller,
Altebergstrasse 27-29, D-36341 Lauterbach/Hessen,
Tel. +49 (0) 6641/9685-0, Fax +49 (0) 6641/9685-50,
e-mail: info@fts-de.com
Register of Commerce: Gießen
Reg-No.: HRB 5602
VAT-No.: DE 155 574 908
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Terms and Conditions of Delivery for Use in Business Transactions with Traders
and Manufacturers
(1) All supplies, services and offers by
the Seller (hereinafter also referred to as the "Supplier") are
provided exclusively on the basis of these General Terms and Conditions of
Delivery. These form an integral part of all contracts that the Seller
concludes with its contracting parties (hereinafter also referred to as the
"Customer") and which cover the supplies or services offered by it.
They also apply to all future supplies, services or offers to the Customer even
if they are not agreed separately again.
(2) Business terms and conditions of the
Customer or third parties shall not apply, even if the Seller does not
separately oppose their validity in an individual case. Even if the Seller
makes reference to a letter that contains the business terms and conditions of
the Customer or a third party or refers to such, this does not mean that the
Seller agrees to the validity of these business terms and conditions.
(3) These General Terms and
Conditions of Delivery shall only apply to traders and manufacturers.
§ 2 Offer and
conclusion of contract
(1) All offers by the Seller are
non-binding and subject to change without notice unless they are expressly
marked as binding or contain a specific acceptance period. The Seller can
accept orders within fourteen days following receipt.
(2) The contract of sale concluded in
writing, inclusive of these General Terms and Conditions of Delivery, shall be
solely decisive for the legal relations between the Seller and the Customer.
This contract completely reflects all agreements entered into by the
contracting parties regarding the subject matter of the contract. Verbal
commitments given by the Seller prior to the conclusion of the contract are not
legally binding and verbal agreements between the contracting parties are
replaced by the written contract unless it expressly appears from these or the
written contract that they continue to be binding.
The qualities and properties
stipulated in the contractual performance specification determine the qualities
and properties of the delivery item comprehensively and conclusively. In
particular, public statements by the Seller, its assistants or third parties (for
example, statements about product qualities and properties made publicly and
openly) shall not contain descriptions of the delivery item that supplement or
amend this performance specification.
(3) Additions and amendments to the
agreements made, including these General Terms and Conditions of Delivery,
require the written form if they are to be valid. Except for managing directors
or authorised signatories, the Seller's employees are not authorised to make
verbal agreements deviating herefrom. Transmission by fax shall be deemed
sufficient regarding the observance of the written form requirement. However
transmission by telecommunications systems, in particular by e-mail, is not
sufficient.
(4) The Seller's information about the
item delivered or service supplied (for example, weight, dimensions, service or
use values, load-carrying capacity, tolerances and technical data) as well as
the illustrations thereof (for example, drawings and figures), are only
approximately authoritative unless usability according to the contractually
intended use requires exact conformity. They are not guaranteed features but
rather descriptions or identifications of the service or supply. Customary
deviations and deviations due to legal provisions or deviations presenting technical
improvements as well as the replacement of components by parts of equal quality
are admissible provided that they do not affect usability according to the
contractually intended use.
(5) The Seller reserves
ownership of or copyright to all offers and estimates submitted by it, as well
as ownership of and copyright to drawings, figures, calculations, brochures,
catalogues, models, tools or other documents and material resources provided to
the Customer. Without the Seller's express consent, the Customer must not allow
third parties to access these items or their contents, it must not disclose
them, use them itself, allow them to be used by third parties, or reproduce
them. At the request of the Seller, these items are to be returned in full and any
photocopies are to be destroyed if they are no longer necessary in the ordinary
course of business or if negotiations do not result in the conclusion of a
contract.
§ 3 Prices and
payment
(1) The prices shall be valid for the
scope of service and supply indicated in the order confirmations. Additional or
special services shall be invoiced separately. The prices shall be in EURO, ex
works plus packaging, applicable VAT, customs duty in the case of export
deliveries, as well as fees and other public charges.
(2) If the agreed prices are based on the
Seller's list prices and delivery or service is to be effected more than four
months after conclusion of the contract, the Seller's list prices applicable at
the time of delivery shall apply (minus each time an agreed discount on a
percentage or fixed basis).
(3) Payment shall be due in full upon
delivery and/or acceptance. Invoiced amounts are to be paid within thirty days
without any deduction unless otherwise agreed in writing. Regarding receipt of
payment by the Seller, the date of payment shall be decisive. Cheques shall be
deemed paid only after they have been turned into cash.
Without further declaration by the
Seller, the Customer shall be in arrears if it has not paid invoiced amounts
within 30 days following due date. Interest at the rate of 5 % per annum shall
be paid on the outstanding amounts from due date. In the event of payment
default, the Supplier is entitled to demand interest on arrears amounting to 9
percentage points above the base lending rate (§ 247 German Civil Code). The
Supplier is allowed to prove that damage caused by default has amounted to a
higher figure.
(4) In the event of the existence of
defects, the Customer does not have a right of retention unless the delivery is
obviously defective or the Customer obviously has the right to refuse to accept
the work; in such a case the Customer is only entitled to retain payment if the
retained amount is reasonably proportionate to the defects and estimated costs
of supplementary performance (particularly a remedying of the defect). The
Customer is not entitled to assert claims and rights on account of defects if
the Customer has not made payments when due and the amount due (including
payments that may have been made) is reasonably proportionate to the value of
the delivery or work that is affected by defects.
(5) Set-off against counterclaims of the
Customer or retention of payments due to such claims is only admissible if
these claims have not been contested and have been recognised by declaratory
judgement.
(6) The Seller is
entitled to execute outstanding deliveries or render outstanding services only
against advance payment or provision of security if after conclusion of the
contract it becomes aware of circumstances which may significantly reduce the
creditworthiness of the Customer or due to which the settlement of the Seller's
outstanding receivables by the Customer resulting from the respective
contractual relationship is endangered.
§ 4 Delivery and
delivery time
(1) Deliveries are made ex works.
(2) Times and dates for deliveries and
services announced by the Seller are only approximate unless a fixed term or
date is expressly guaranteed or agreed. If forwarding has been agreed, the
delivery times or dates refer to the time of handover to the carrier, forwarder
or any other third party entrusted with the transport.
(3) Irrespective of its rights resulting
from delay on the part of the Customer, the Seller can ask the Customer to
extend the delivery and performance periods or to postpone the delivery and
performance dates by that period during which the Customer failed to comply
with its contractual obligations towards the Seller.
(4) The Seller shall not be liable for the
impossibility of delivery or for delays in delivery provided that the latter
were caused by force majeure or other circumstances which could not be foreseen
at the time that the contract was concluded (for example, interruption of
operations of any kind, difficulties in the procurement of material or energy,
transport delays, strikes, legal lock-out, lack of labour, energy or raw
materials, difficulties in the procurement of required official authorisations,
official measures or outstanding, incorrect or defaulting delivery by
suppliers) and for which the Seller is not responsible. Insofar as such
circumstances significantly impede the delivery or performance or render the
delivery or performance impossible and insofar as such impediments are not
temporary, the Seller is entitled to withdraw from the contract. In case of
temporary impediments, the dates of delivery and/or performance shall be
extended or postponed by the period of impediment plus a reasonable starting
period. If the Customer cannot be expected to take delivery or accept the
provision of service as a consequence of the default, it can withdraw from the
contract by declaring this in writing to the Seller immediately.
(5) The
Seller shall only be entitled to make partial deliveries if
– the
partial delivery can be used by the Customer within the scope of the
contractual intended use,
– delivery
of the remaining ordered goods is ensured, and
– the Customer does not incur any
considerable additional expenditure or costs (unless the Seller states that it
is prepared to take over these costs).
(6) If the Seller is in default with its
delivery or performance or if its delivery or performance is impossible for any
reason, the Seller's liability for damages is limited in accordance with
Section 8 of these General Terms and Conditions of Delivery. In the event of
default, the Customer's liability for damage caused by delay in the event of
slight negligence is limited to 5 % of the value of that part of the total
delivery that cannot be used in good time or as per the contract as a result of
the delay.
§ 5 Place of
performance, shipment, packaging, transfer of risk, acceptance
(1) The place of performance for all
obligations ensuing from the contractual relationship shall be the place where
the Seller's branch is located unless otherwise agreed. If the Seller is also
responsible for installation, the place of performance shall be the place at
which the installation is to be effected.
(2) The mode of shipment and the packaging
are at the discretion of the Seller after due assessment of the circumstances.
(3) The risk is transferred to the
Customer at the latest upon handover of the delivery item (the beginning of the
loading operation is decisive) to the forwarder, carrier or other third parties
entrusted with the shipment. This also applies if partial deliveries are
effected or if the Seller has also taken over other services (for example,
dispatch or installation). If shipment or handover is delayed due to a
circumstance for which the Customer is responsible, the risk is transferred to
the Customer when the goods are ready for dispatch at the Seller's site and the
Customer is notified thereof by the Seller.
(4) Storage costs after transfer of
risk are borne by the Customer. If dispatch of the deliveries is, at the
request of the Customer, delayed by more than two weeks after the agreed
delivery date or, if no exact delivery date was agreed, following notification
by the Seller that the goods are ready for dispatch, the Seller can charge a
flat-rate storage fee for each month (if applicable, proportionate to the
period) that totals 0.5 % of the price of the delivery item, the maximum amount
being however 3 %. The Customer shall be allowed to prove that the Seller has
not incurred any damage or it has incurred significantly less damage. The
Seller shall be allowed to prove that a higher amount of damage has been
incurred.
(5) The Seller shall take out insurance
policies for the consignment against theft, breakage, transport, fire and water
damages or other insurable risks only at the express request of the Customer
and at its expense.
(6) If
the goods are subject to acceptance. the object of sale is deemed accepted if
– the
delivery and the installation, if the Seller is also responsible for the
installation, are completed,
– the Seller
notified the Customer thereof referring to the implied acceptance according to
Section 5 Subsection 6 and requested the Customer to accept the items,
– 4 weeks have
passed since the delivery or installation or the Customer started using the
object of sale (for example, the delivered equipment was put into operation)
and 2 weeks have passed since the delivery or installation in this case, and
– the Customer
fails to accept the object of sale within this period for a reason other than a
defect notified to the Seller which renders the use of the object of sale
impossible or impairs the use considerably.
§ 6 Warranty,
material defects, withdrawal
(1) The warranty period for delivered
plant and machinery amounts to one year as from delivery or as from acceptance
if an acceptance is required.
(2) The warranty period for services
rendered (for example, fluorination services) is determined by the respective
individual agreement.
(3) The supplied items are to be checked
thoroughly and immediately after delivery to the Customer or a third party
designated by the Customer. They shall be deemed approved if the Seller does
not receive a written notice of defect as defined in Section 2 Subsection 3
Clause 3 in respect of obvious defects or other defects that were visible in
the event of an immediate and thorough check within seven working days
following delivery of the item or otherwise within seven working days following
detection of the defect or at an earlier point in time when the defect was
visible for the Customer when using it under normal circumstances without any
further inspection. At the request of the Seller, the rejected item is to be
returned to the Seller freight paid. In the event of justified notice of
defect, the Seller shall reimburse the costs for the cheapest forwarding route;
this shall not apply if the costs are higher because the delivery item is at a
place other than the place of intended use.
(4) In the event of material defects in
the delivery items, the Seller is obliged and entitled to select remedy or
replacement delivery within a reasonable period. In the event of failure, that
is, impossibility, hardship, refusal or unreasonable delay of remedy or
replacement delivery, the Customer can withdraw from the contract or reasonably
reduce the purchase price. If the Customer wants to claim compensation for
damage instead of performance or remedy the defects itself, then in this
respect a failure to remedy the defect exists only after the unsuccessful
second attempt. Apart from that, the statutory cases of dispensability of the
fixing of a time limit remain unaffected
(5) If the Seller is to blame for a
defect, the Customer may claim compensation for damage according to the
conditions defined in Section 8.
(6) In the event of defects in components
provided by other manufacturers which the Seller cannot remedy for licensing or
factual reasons, it is at the Seller's discretion to lodge its warranty claims
against the manufacturers and suppliers for the account of the Customer or to
transfer its warranty claims to the Customer. Warranty claims that may be
lodged against the Seller exist in the event of such defects and in the event
of a manufacturer's warranty granted according to the other conditions and
these General Terms and Conditions of Delivery only if the legal enforcement of
the aforementioned claims against the manufacturers and suppliers was not
successful or is unpromising, for example, due to insolvency. During the
duration of the legal dispute, the limitation of the respective warranty claims
by the Customer against the Seller shall be suspended.
(7) The warranty is not applicable if the
Customer modifies the delivery item or has it modified by third parties without
the Seller's consent and the removal of the defect is hence impossible or
rendered unreasonably difficult. In any case, the Customer undertakes to bear
the additional costs of removal of the defect arising due to the modification.
(8) Delivery of used
articles agreed with the Customer in an individual case shall be effected
without any warranty for material defects.
(9) Warranty claims cannot be asserted if
there has been only a slight deviation from the agreed quality or if usability
has only been slightly impaired.
(10) Within the scope of the statutory
provisions, the Customer can only withdraw from the contract if the Seller is
responsible for the breach of duty; in the event of defects however the
statutory rights of the Customer remain unaffected. In the event of breaches of
duty, the Customer must declare to the Seller within a reasonable period of
time, as requested by the Seller, whether it intends to withdraw from the
contract due to the breach of duty or whether it intends to insist on delivery.
§ 7 Property
rights
(1) In accordance with Section 7, the
Seller guarantees that the delivery item is free of industrial property rights
or copyrights of third parties. Each contracting party undertakes to inform the
other party immediately in writing if claims regarding violation of such rights
are lodged against it.
(2) If the delivery item violates any
industrial property right or copyright of a third party, the Seller shall
modify the delivery item or replace it at its discretion and expense in a way
that third parties' rights are no longer violated, but the delivery item shall
continue to perform the contractually agreed functions or the Seller shall
provide the Customer with the right of use by concluding a licence agreement.
If the Seller fails to execute the above within a reasonable period of time,
the Customer is entitled to withdraw from the contract or to reasonably reduce
the purchase price. Any claims for damages by the Customer are subject to the
limitations of Section 8 of these General Terms and Conditions of Delivery.
(3) In the event of
violations of law by products from other manufacturers delivered by the Seller,
it is at the Seller's discretion to lodge claims against the manufacturers and
subsuppliers for the account of the Customer or to transfer its claims to the
Customer. Claims against the Seller exist in such cases pursuant to section 7
only if the legal enforcement of the aforementioned claim against the
manufacturers and subsuppliers was not successful or is unpromising, for
example, due to insolvency.
§ 8 Liability for
damages due to fault
(1) The Seller's liability for damages (in
particular, compensation for damage in addition to performance and compensation
for damage instead of performance) for whatever legal reason, especially for
impossibility, delay, faulty or incorrect delivery, breach of contract, breach
of duties in the event of contractual negotiations and tortious act, is limited
pursuant to this Section 8 insofar as it involves a fault.
(2) The Seller is not liable in the event
of slight negligence on the part of its executive bodies, legal
representatives, employees or other vicarious agents if it is not a violation
of contractually relevant obligations. Contractually relevant obligations are
obligations involving timely delivery, installation and commissioning of the
delivery item free of fundamental defects as well as obligations involving
training, consultancy, protection and proper care which are intended to allow
use of the delivery item by the Customer in accordance with the contract or to
protect life and limb of the Seller's personnel or the Customer's property
against serious damage.
(3) Insofar as the Seller is liable for
damages pursuant to Section 8 Subsection 2, and in the case of its own gross
negligence as well as that of its executive bodies, legal representatives,
employees or other vicarious agents, this liability is limited to damages that
the Seller foresaw upon conclusion of the contract as a possible consequence of
a breach of contract or would have foreseen if ordinary care had been
exercised. Indirect or consequential damages caused by defects in the delivery
item are only recoverable damages if such damages are to be typically expected
when the delivery item is used as intended.
(4) In the event of liability for slight
negligence, the Seller's liability to pay for material damages and additional
pecuniary damages ensuing therefrom is limited to an amount of EUR 5,000,000
per case of damage (corresponds to the current sum insured by its extended
product liability insurance policy) even if it involves a violation of
contractual obligations.
(5) The aforementioned disclaimers and
limitations shall apply to executive bodies, legal representatives, employees
and other vicarious agents of the Seller's company to the same extent.
(6) Insofar as the Seller provides
technical information or acts as a consultant and this information or advice is
not included in the contractual scope of performance owed by the Seller, this
is effected free of charge and without any liability.
(7) The limitations of
this Section 8 shall not apply to the Seller's liability due to wilful
behaviour or injury to life, body or health or to its liability for guaranteed
features or pursuant to the Product Liability Act.
(8) The aforementioned regulations do not
involve an amendment to the burden of proof to the detriment of the Customer.
§
9 Statutes of limitation
(1) The period of limitation for claims
and rights due to defects in the delivery - for whatever legal reason - is one
year. However this does not apply in the cases covered by Section 438
Subsection 1 No. 1 German Civil Code (defects in title for immovable property),
Section 438 Subsection 1 No. 2 German Civil Code (buildings, objects for
buildings), Section 479 Subsection 1 German Civil Code (claim by the trader or
manufacturer under a right of recourse) or Section 634 a Subsection 1 No. 2
German Civil Code (building or work the result of which consists in the
provision of planning or supervisory services therefor). The periods referred
to in the preceding Clause 2 are subject to a period of limitation of three
years.
(2) The periods of limitation according to
Subsection 1 also apply to all claims for damages against the Supplier that
relate to the defect - regardless of the legal basis of the claim. If any type
of claim for damages is made against the Supplier that does not relate to a
defect, the period of limitation referred to in Subsection 1 Clause 1 shall
apply.
(3) The periods of limitation according to
Subsection 1 and Subsection 2 shall apply with the following proviso:
a) Generally the periods of limitation
do not apply in the event of acts of intent or fraudulent concealment of a
defect or if the Seller has furnished a guarantee for the quality of the
delivery item.
b) Moreover the periods of limitation do
not apply to claims for damages in the case of injury to life, body or health
or to freedom, in the event of claims pursuant to the Product Liability Act, in
the event of a grossly negligent breach of duty or in the event of a breach of
fundamental contractual obligations.
(4) For all claims the period of limitation
begins upon delivery or upon acceptance in the case of work performance.
(5) Unless otherwise stipulated expressly,
the statutory provisions covering the commencement of the limitation period,
the suspension of the running of a period, the suspension and recommencement of
periods remain unaffected.
(6) The aforementioned regulations do not
involve an amendment to the burden of proof to the detriment of the Customer.
§ 10 Reservation
of title
(1) The delivery item remains the property
of the Supplier until all claims - including future claims - ensuing from the
business relationship have been met by the Customer.
(2) The Supplier is entitled to insure the
delivery item, at the expense of the Customer, against fire, water and other
damages if the Customer has not, as proven, taken out such insurance cover.
(3) Loan or transfer for use, pledging or
collateral assignment is not permissible during the time that the Supplier
retains title to the delivery items.
(4) If the delivery item is seized by
a third party, the Supplier must be notified of this immediately.
(5) If the Supplier takes back or seizes
the delivery item, this does not constitute withdrawal from the contract unless
the Supplier has declared this expressly in writing.
(6) If, in the event of exports, the
validity of the reservation of title is subject to special prerequisites or
formal requirements in the Customer's country, the Customer is obliged to
ensure that these are complied with at its expense. If the law of the country
in which the delivery item is situated does not allow a reservation of title,
but does allow the Seller to hold other rights to the delivery item, the
Supplier can exercise any of these rights. The Customer is obliged to assist
the Supplier when it wishes to take measures to protect its right of ownership
or instead of this to exercise some other right to the delivery item.
(7) If the realisable value of all
security rights that the Supplier holds exceeds the amount of all secured
claims by more than 110 %, at the request of the Customer the Supplier shall
release a corresponding part of the security right.
§ 11 Final
provisions
(1) The place of jurisdiction for any
disputes ensuing from the business relationship between the Supplier and the
Customer is, if the Customer is a trader, either the registered office of the
Supplier or that of the Customer, as decided upon by the Supplier. For legal
actions against the Supplier, the registered office of the Supplier is the
exclusive place of jurisdiction. Binding legal provisions covering exclusive
places of jurisdiction shall remain unaffected by this regulation.
(2) The relations between the Supplier and
the Customer shall be subject exclusively to the law of the Federal Republic of
Germany excluding the conflict of law rules under International Private Law and
excluding the UN Sales Law. The United Nations Convention on Contracts for the
International Sale of Goods dated 11 April 1980 (CISG) shall not apply.
(3) If the contract or
these General Terms and Conditions of Delivery contain legal loopholes, in
order to close these loopholes, those legally valid regulations that the
contracting parties would have agreed according to the economic objectives of
the contract and the purpose of these General Terms and Conditions of Delivery
if they had known about the gap in the provisions, shall be deemed to be
agreed.
The Customer acknowledges that the
Seller stores data from the contractual relationship pursuant to Section 28
German Federal Data Protection Act for the purpose of data processing and that
the Seller reserves the right to transfer the data to third parties (for
example, insurance companies) insofar as this is required for the performance
of the contract.
