General sales and delivery conditions of FAFNIR GmbH
§ 1 General
1.1 All deliveries, services provided and offers made by us are made exclusively on the basis of these general sales and delivery conditions. General terms and conditions of the Purchaser which conflict with or vary from our general sales and delivery conditions shall not be appli-cable, even if we do not specifically reject their application in individual cases.
Our general sales and delivery conditions shall also apply even if we deliver the order to the Purchaser without reservation and with the knowledge of conflicting or varying general sales and delivery conditions of the Purchaser.
1.2 Our general sales and delivery conditions apply only to undertakings in the sense of § 14 German Civil Code (BGB).
1.3 In case of current business transactions, our general sales and delivery conditions also apply to all future transactions with the Pur-chaser.
§ 2 Offer, offer documentation, conclusion of contract
2.1 Our offers are subject to change and non-binding. In case offers are made on the basis of the description of services we do not guaran-tee the correctness and completeness of the planning.
2.2 In case of an order pursuant to § 145 German Civil Code, we are entitled to accept it within two weeks after its receipt.
2.3 We reserve the right to customary modifications and such which result from legal regulations or which constitute technical improvements, in particular changes to construction and form of the subject of the contract and insignificant or customary variations in size, weight or quality, without prior notice as long as they do not affect the ability of the goods to be used as intended.
2.4 We retain property rights and copyrights to all images, drawings, models, calculations, prospectuses and other documents. This particu-larly applies to written documents which are marked “confidential“. The Purchaser may not without our specific prior approval make such documents or their contents available to third parties or use them or copy them or allow them to be used or copied by third parties outside the scope of our agreement.
2.5 We reserve the right to secure the transaction by means of loan insurance and to supply the insurer with the necessary details of the Purchaser. The same applies to factoring and debt collection companies.
2.6 For transaction processing purposes, the Purchaser’s data is recorded on our data processing system.
§ 3 Prices, payment conditions
3.1 Unless otherwise specified in the offer confirmation, our prices are quoted “ex factory” in Euros plus applicable value-added tax. Costs for packing and transport insurance will be invoiced separately.
3.2 We reserve the right to increase our prices by a reasonable amount if our costs have increased after conclusion of the contract for rea-sons for which we are not liable, particularly due to collective wage agreements or costs of materials. These will be evidenced to the Pur-chaser upon request.
3.3 Unless otherwise agreed, net cash payment (without deduction) is to be made immediately. Discounting can only be made with prior written approval. Our agents are not authorised to accept payment.
3.4 In case of default payment of the Purchaser with one payment or in case of concrete evidence of an impending insolvency of the Pur-chaser or should it become apparent in any other way after conclusion of the contract that our consideration is threatened in any way by inability of the Purchaser to perform its obligations, we may cease further performance of current orders and demand the immediate pre-payment of all amounts under the contract, including those not yet due, and demand deferred payments or security guarantees. If the Pur-chaser does not meet our prepayment or security guarantee demands within the reasonable period of notice set, we are entitled to terminate the contract and demand that the Purchaser reimburses all our costs which have been incurred in the course of the contract, including lost profits.
3.5 Further legal claims against the Purchaser, particularly for damages, reimbursement or rescission, remain unaffected. 3.6 The Purchaser is only entitled to offset or retain claims, if they are uncontested or declared to be legally binding.
3.7 In case of defects, payments may only be retained by the Purchaser in reasonable proportion to the amount of defects alleged.
§ 4 Delivery period
4.1 The delivery period commences with the dispatch of our letter of confirmation, but not before: (a) the complete provision of documents, authorisations and releases to be provided by the Purchaser, (b) the clarification of all technical questions and (c) receipt of the agreed down-payment.
4.2 In case of collective action, particularly strikes or lock-outs, or in case of unforeseen circumstances which lie beyond our control such as force majeure or non-delivery, the delivery period shall be extended for the period of the hindrance plus a reasonable catch-up period. The same applies if our suppliers are affected by similar circumstances. If it should become impossible for us to complete the contract entirely or in part for the reasons outlined above, we shall be released from our delivery obligations. The circumstances outlined shall also not be our responsibility even if they occur during an existing delay.
4.3 The delivery period is met if upon expiry of the time the goods have left our factory or availability for delivery has been notified.
4.4 We are entitled to partial delivery if the partial delivery is usable by the Purchaser for the purpose intended by the contract and if no extra costs incur for the Purchaser or if any extra costs are borne by us.
4.5 If the Purchaser delays accepting delivery or if he breaches other obligations to cooperate, we are entitled to demand reimbursement of damages incurred to us, including extra expenses. Further claims remain unaffected.
§ 5 Transfer of risk and dispatch
5.1 Unless otherwise agreed in the confirmation of the order, delivery is made “ex factory”.
5.2 Unless otherwise agreed, the dispatch will be insured at the cost of the Purchaser.
5.3 The risk of accidental loss of or damage to the goods is passed to the Purchaser as soon as the goods leave our factory or our ware-house. If the dispatch is delayed by circumstances caused by the Purchaser, this risk passes to the Purchaser on the day when we are ready to dispatch the order. If the Purchaser delays acceptance of the delivery or if it damages or breaches other cooperation obligations, the passing of risk to the Purchaser shall take place at the latest when the delay caused by the Purchaser due to failure to accept the goods or failure to settle debts occurs.
5.4 If the Purchaser does not accept the contractual goods at the time agreed, we are entitled to set a reasonable deadline for acceptance after expiry of which we will dispose with the goods as necessary and deliver to the Purchaser with a reasonable extended deadline delivery. 5.5 Transport packaging and other packaging in accordance with the German Regulation on Packaging shall not be returned to us, with the exception of wooden palettes. The Purchaser is obliged to arrange for the disposal of packaging at its own cost.
§ 6 Defects and duty of inspection, notification and rejection
6.1 Claims for defects in the goods by the Purchaser must be made on the basis that he has properly fulfilled his obligations for inspection, notification and rejection in accordance with § 377 German Commercial Code (HGB). Evident defects must be notified to us within two weeks of acceptance of the delivery or the delivery shall be deemed to be accepted. For such claims to be valid, the notification of defects must be received by us in writing (including by fax).
6.2 In place of the statutory period of limitation for defects pursuant to § 438 (1) (3) German Civil Code, the period of limitation shall be one year. Otherwise, the statutory period of limitations for defects shall apply.
6.3 The defective goods are to be returned to us for examination at our costs in the original packing or a suitably similar packaging. We will remedy the defects by way of supplementary performance upon our choice by curing the defect or by delivering a replacement product in case justified defects are notified within the deadline.
We are entitled to decline to remedy in accordance with legal requirements.
Should we decline to cure any defect, or if this is not possible, or if this is untenable for the Purchaser, the Purchaser is entitled to withdraw from the contract or to reduce payment in accordance with the following paragraph of these general sales and delivery conditions.
Should the Purchaser withdraw from the contract, the Purchaser is liable for any deterioration, destruction and compensation for use, not only for its own due care and attention but also for negligent or intentional fault. Eventual claims for damages and reimbursement by the Purchaser are covered by the provisions of § 7 below.
In case of fraudulent concealment of a defect or in case of assumption of a guarantee that the goods have a certain condition at the time of transfer of risk in the sense of § 444 German Civil Code (Statement of the Seller that the goods had a certain condition at time of transfer of and that the Seller accepts liability irrespective of fault), the rights of the Purchaser are governed exclusively by the legal regulations. The reservations of § 478 German Civil Code remain unaffected.
6.4 In addition to statutory grounds for refusal, we are entitled to decline to rectify goods as long as the Purchaser does not respond to our demand to send the defective goods or a sample to us; the Purchaser is not entitled to withdraw the contract or to reduce payments under such circumstances.
6.5 Our liability is invalidated where unauthorised amendments or improper maintenance have been made to the goods by the Purchaser or another third party without our prior approval.
6.6 Our guarantee or liability for third party goods or other parts not produced by us is limited to the assignment of claims to our suppliers, where a defect does not lie within our area of responsibility. If the fulfilment of claims fail from assigned rights, we shall be liable for the other terms outlined under the conditions of this paragraph.
§ 7 Liability for damages and reimbursement of expenses
7.1 In case of a pre-contractual, contractual or extra-contractual breach of obligations, even in case of defective delivery, tortuous acts, and in case of manufacturer’s liability, we shall be liable for damages and reimbursement of expenses – subject to further contractual or legal conditions for liability – only for intentional or grossly negligent actions. For simple negligence, we shall be liable only where there has been a breach of an essential contractual term, i.e. a contractual term which threatens the whole purpose of the contract or on which the Purchaser had placed particular importance. Our liability is – with the exception of intentional acts – limited to reasonable typical damages foreseeable at the conclusion of the contract. The assertion of unnecessary expenses by the Purchaser is not permitted.
7.2 For damages arising from default, we accept liability for simple negligence only for an amount up to 10% of the agreed purchase price. 7.3 The exclusions and limitations of liability contained in § 7.1 – 7.2 shall not apply for the assumption of a guarantee that there is a condi-tion of the goods in the sense of § 444 German Civil Code, for fraudulent concealment of a defect, for damages to life and limb or personal injury, or for strict liability in accordance with product liability law.
7.4 All claims for damages against us which are not claims for defective goods (see §6.2), made on whichever legal basis but subject to § 479 German Civil Code, shall expire at the latest one year after delivery of the goods to the Purchaser or, for tortuous liability, from the date of discovery of the damage or grossly negligent failure to recognise the damage in the circumstances and by the person or liable persons. The conditions of this term shall not apply – and the statutory regulations will apply – where there is intention and in the circumstances out-lined in § 7.3. Eventual shorter statutory deadlines shall have priority.
7.5 Insofar as our liability is excluded or limited, this shall apply also to the personal liability of our salary-earners, employees, representa-tives and auxiliary persons.
§ 8 Reservation of proprietary rights
8.1 We reserve all property rights with regard to goods until final receipt of all payments resulting from the transaction with the Purchaser.
8.2 The Purchaser is obliged to treat the goods with care; in particular, he is obliged to insure the goods at his own cost for replacement value against fire, water damage and theft. Where maintenance and inspections are necessary, the Purchaser must carry them out at its own cost in due time.
8.3 We must be informed immediately in writing of distraints or other interventions by third parties so that we may take action in accordance with § 771German Code of Civil Procedure (ZPO). Where the third party is not able to reimburse the legal and extra-legal costs of a legal action under § 771 ZPO, the Purchaser shall be liable for our loss accrued.
8.4 The Purchaser is permitted to sell on the goods within the normal course of business; however, to secure our claims, the Purchaser must immediately cede all claims in the amount of the final invoice (including value added tax) received as proceeds from the sale either from its purchaser or from a third party, regardless of whether the goods have been sold on before or after processing. The right to enforce the claim remains with the Purchaser even after the transfer of the goods. Our right to enforce the claim remains unaffected. However, we agree not to enforce the claim so long as the Purchaser fulfils its payment obligations from the agreed claims, does not delay the payment or enter into an insolvency procedure or bankruptcy. If this is the case, we can request that the Purchaser discloses the assigned claims and the debtors, makes the required statements for the collection, hands over the relevant documents and informs his debtors (third parties) about the as-signment.
8.5 At the request of the Purchaser, we undertake to release excess securities provided by the Purchaser where the realisable value of the security has risen above the level of security to be provided by the Purchaser by more than 10% or by more than 50% of the value held; the choice of securities to be released is at our discretion.
§ 9 . Export control
9.1 Any delivery under this contract is subject to the reservation that performance does not conflict with any national or international export control regulations, for example embargoes or other sanctions. The Customer undertakes to provide all information and documents required for the export or transfer. Delays due to export examinations or permission procedures shall set aside any time limits and delivery periods. If necessary permissions are not granted, or if the delivery and service is not capable of being permitted, the contract shall be deemed as not concluded with regard to the parts of it that are concerned.
9.2 The Supplier is entitled to terminate the contract without notice if termination on the part of the Supplier is required for compliance with national or international legal regulations.
9.3 In the event of a termination according to clause 9.2, the assertion of any claim for damages or the assertion of other rights by the Customer based on the termination shall be excluded.
9.4 The Customer must upon passing on any goods delivered by the Supplier to third parties at home and abroad comply with the relevant applicable regulations of national and international export control law.
§10 Compliance with Laws/Anticorruption
Buyer shall comply fully with all applicable laws, rules and regulations, including without limitation those of the United States and any and all other jurisdictions globally (the “Laws”) that apply to Buyer’s business activities in connection with its purchase of goods from Seller. Specifically, Buyer shall comply with all the Laws relating to anti-corruption, bribery, extortion, kickbacks, or similar matters that are applicable to Buyer’s business activities in connection with this contract, including without limitation the U.S. Foreign Corrupt Practices Act, the UK Bribery Act and the Strafgesetzbuch (German Criminal Code) . Buyer will take no action that will cause Buyer or Seller or any of their affiliates to violate any such Laws
§ 11 Address for service, jurisdiction, applicable law
11.1 The address for service and payments is our registered office in Hamburg.
11.2 Jurisdiction is held by the court in Hamburg.
11.3 This contract is governed by the laws of the Federal Republic of Germany. The United Nations Convention on Contracts for the Interna-tional Sale of Goods (CISG).is excluded.
FAFNIR GmbH General Sales and Delivery Conditions, Date: 20 December 2016