General Terms and Conditions of Sale and Delivery of FG Kunststoffmatten GmbH
§ 1 Validity
(1) All deliveries, services and offers of FG Kunststoffmatten GmbH (hereinafter referred to as “Seller”) shall be made exclusively on the basis of these General Terms and Conditions of Sale and Delivery if the contractual partner (hereinafter referred to as “Customer”) is an entrepreneur (§ 14 German Civil Code), a legal entity under public law or a special fund under public law. These are an integral part of all contracts concluded by the Seller with the Customer for the deliveries or services offered by the Seller. They shall also apply to all future deliveries, services or offers to the customer, even if they are not separately agreed again.
2. terms and conditions of the customer or third parties shall not apply, even if the seller does not separately object to their validity in individual cases. Even if the Seller refers to a letter containing or referring to the terms and conditions of the Customer or a third party, this shall not constitute an agreement to the validity of those terms and conditions.
§ 2 Offer and conclusion of contract
1. all offers of the seller are subject to change and non-binding, unless they are expressly marked as binding or contain a specific acceptance period. Orders or contracts can be accepted by the seller within 14 days after receipt.
(2) The legal relationship between the Seller and the Customer shall be governed solely by the concluded purchase contract, including these General Terms and Conditions of Delivery, which shall come into effect by acceptance of the Customer’s order, which shall be deemed a binding offer, by means of the Seller’s order confirmation in writing or text form or by delivery of the goods. This shall fully reflect all agreements between the contracting parties on the subject matter of the contract. Verbal promises made by the Seller prior to the conclusion of this contract shall not be legally binding and verbal agreements of the contracting parties shall be replaced by the written contract, unless it is expressly stated in each case that they shall continue to be binding.
Supplements and amendments to the agreements made, including these General Terms and Conditions of Delivery, must be made in writing or text form in order to be effective. With the exception of managing directors or authorized signatories, the Seller’s employees are not entitled to make verbal agreements deviating from the agreement made in writing or text form.
4. information provided by the seller on the object of the delivery or service (e.g. weights, dimensions, utility values, load capacity, tolerances and technical data) as well as the representations of the same (e.g. drawings and illustrations) are only approximately authoritative, unless the usability for the contractually intended purpose requires an exact match. They are not guaranteed characteristics, but descriptions or identifications of the delivery or service. Deviations that are customary in the trade and deviations that occur due to legal regulations or represent technical improvements as well as the replacement of components with equivalent parts are permissible insofar as they do not impair the usability for the contractually intended purpose.
(5) If the Seller has to deliver according to the Customer’s specifications (drawings, dimensions, specifications, samples, etc.), the contractually agreed quality of the items to be delivered shall be determined on the basis of these specifications. The seller does not check whether the items to be delivered are suitable for the purpose intended by the customer.
§ 3 Prices and payment
1. the prices apply to the scope of services and deliveries listed in the order confirmations. Additional or special services will be charged separately. Prices are in EUR ex works plus. packing, packaging, loading, the statutory value added tax, in the case of export deliveries customs duty as well as fees and other public charges.
(2) If the agreed prices are based on the Seller’s list prices and the delivery is to be made more than four months after the conclusion of the contract, the Seller’s list prices valid at the time of delivery shall apply (in each case less an agreed percentage or fixed discount).
Invoice amounts are to be paid within 8 days without any deduction, unless otherwise agreed in writing. The date of receipt by the seller is decisive for the date of payment. If the customer fails to make payment when due, interest shall be charged on the outstanding amounts from the due date at the statutory interest rate applicable from time to time; the right to claim higher interest and further damages in the event of default shall remain unaffected.
4. offsetting against counterclaims of the customer or the retention of payments due to such claims shall only be permissible insofar as the counterclaims are undisputed or have been legally established or arise from the same order under which the delivery in question was made.
(5) The Seller shall be entitled to perform or render outstanding deliveries or services only against advance payment or provision of security if, after the conclusion of the contract, circumstances become known to the Seller which are likely to substantially reduce the creditworthiness of the Customer and as a result of which the payment of the Seller’s outstanding claims by the Customer under the respective contractual relationship (including under other individual orders to which the same framework agreement applies) is jeopardized.
§ 4 Delivery and delivery time
1. deliveries are made ex works.
(2) Deadlines and dates for deliveries and services promised by the Seller shall always be approximate only, unless a fixed deadline or date has been expressly promised or agreed. If shipment has been agreed, delivery periods and delivery dates refer to the time of handover to the forwarding agent, carrier or other third party commissioned with the transport.
If the Seller is unable to meet binding delivery deadlines for reasons for which the Seller is not responsible (non-availability of the service), the Seller shall inform the Customer thereof without undue delay and at the same time notify the Customer of the expected new delivery deadline. If the service is also not available within the new delivery period, the Seller shall be entitled to withdraw from the contract in whole or in part; the Seller shall immediately refund any consideration already paid by the Customer. A case of non-availability of performance in this sense shall be deemed to be in particular the failure of the Seller’s supplier to deliver on time, if the Seller has concluded a congruent hedging transaction, neither the Seller nor the supplier is at fault or the Seller is not obliged to procure in the individual case.
(4) The Seller may – without prejudice to its rights arising from default of the Customer – demand from the Customer an extension of delivery and performance periods or a postponement of delivery and performance dates by the period during which the Customer fails to meet its contractual obligations towards the Seller.
(5) The Seller shall not be liable for impossibility of delivery or for delays in delivery, insofar as these are caused by force majeure or other events not foreseeable at the time of conclusion of the contract (e.g. operational disruptions of any kind, difficulties in the procurement of materials or energy, transport delays, strikes, lawful lockouts, shortages of labor, energy or raw materials, difficulties in obtaining necessary official permits, official measures or the failure of suppliers to deliver or to deliver correctly or on time) for which the seller is not responsible. If such events make it considerably more difficult or impossible for the seller to deliver or perform and the hindrance is not only of a temporary nature, the seller is entitled to withdraw from the contract. In the event of hindrances of temporary duration, the delivery or performance deadlines shall be extended or postponed by the period of the hindrance plus the period for which the delivery or performance deadline is extended or postponed. an appropriate start-up period. If the customer cannot reasonably be expected to accept the delivery or service as a result of the delay, he may withdraw from the contract by immediately notifying the seller in writing.
6. the seller is only entitled to partial deliveries if
– the partial delivery is usable for the customer within the scope of the contractual intended purpose,
– the delivery of the remaining ordered goods is ensured and
– the customer does not incur any significant additional expenses or costs as a result (unless the seller agrees to bear these costs).
If the Seller is in default with a delivery or service or if a delivery or service becomes impossible for him, for whatever reason, the Seller’s liability for damages shall be limited in accordance with Clause 7. VII of these General Terms and Conditions of Delivery.
§ 5 Place of performance, shipment, packaging, transfer of risk
1. place of performance for all obligations arising from the contractual relationship is the production site of the seller in 02923 Kodersdorf train station, unless otherwise specified.
2. the method of shipment and packaging are subject to the dutiful discretion of the seller. Simple packaging in paper, cardboard, foam, foil and the like will be charged at cost price and will not be taken back.
3. the risk shall pass to the customer at the latest when the goods are handed over (whereby the start of the loading process shall be decisive) to the customer or forwarding agent, carrier or other third party designated to carry out the shipment. This shall also apply if partial deliveries are made or the Seller has assumed other services (e.g. shipping). If the shipment or the handover is delayed due to a circumstance the cause of which lies with the customer, the risk shall pass to the customer from the day on which the goods are ready for shipment and the seller has notified the customer of this.
4. storage costs after transfer of risk shall be borne by the customer. In case of storage by the seller, the storage costs amount to 0.25% of the invoice amount of the goods to be stored per expired week. We reserve the right to claim and prove further or lower storage costs.
5. the shipment will be insured by the seller against theft, breakage, transport, fire and water damage or other insurable risks only at the express request of the customer and at the customer’s expense.
§ 6 Warranty, material defects
(1) The statutory provisions shall apply to the customer’s rights in the event of material defects and defects of title (including wrong delivery and short delivery as well as improper assembly or defective assembly instructions), unless otherwise stipulated below. In all cases, the special statutory provisions shall remain unaffected in the case of final delivery of the unprocessed goods to a consumer, even if the consumer has processed them further (supplier recourse pursuant to § 478 BGB). Claims from supplier recourse are excluded if the defective goods have been further processed by the customer or another entrepreneur, e.g. by installation in another product.
2. the basis of the seller’s liability for defects is primarily the agreement made on the quality of the goods. All product descriptions and manufacturer’s specifications which are the subject of the individual contract or which were publicly announced by the Seller (in particular in catalogs) at the time of the conclusion of the contract shall be deemed to be an agreement on the quality of the goods.
3. insofar as the quality was not agreed upon, it is to be judged according to the legal regulation whether a defect is present or not (§ 434 Abs. 1 S. 2 und 3 BGB). The Seller shall not be liable for public statements made by the manufacturer or other third parties (e.g. advertising statements) to which the Customer has not referred to the Seller as being decisive for the purchase.
4. the seller is not liable in principle for defects that the customer knows or grossly negligently does not know at the time of conclusion of the contract (§ 442 BGB). Furthermore, the customer’s claims for defects presuppose that he has fulfilled his statutory obligations to examine the goods and give notice of defects (§§ 377, 381 HGB). In the case of building materials and other goods intended for installation or other further processing, an inspection must in any case be carried out immediately before processing. If, during delivery, inspection, or at the time of
a defect at any later time, the Seller shall be notified thereof in writing without undue delay. In any case, obvious defects must be reported in writing within 5 working days from delivery and defects that are not visible during the inspection must be reported within the same period from discovery. If the customer fails to properly inspect the goods and/or report defects, the seller’s liability for the defect not reported or not reported in time or not reported properly shall be excluded in accordance with the statutory provisions.
(5) If the delivered item is defective, the Seller may initially choose whether to provide subsequent performance by remedying the defect (subsequent improvement) or by delivering an item free of defects (replacement delivery). The right to refuse subsequent performance under the statutory conditions shall remain unaffected.
6. the seller is entitled to make the owed supplementary performance dependent on the customer paying the due purchase price. However, the customer shall be entitled to retain a part of the purchase price which is reasonable in relation to the defect.
(7) The customer shall give the seller the time and opportunity required for the subsequent performance owed, in particular to hand over the goods complained about for inspection purposes. In the event of a replacement delivery, the customer shall return the defective item to the seller in accordance with the statutory provisions. Subsequent performance does not include removal of the defective item or re-installation if the seller was not originally obligated to install it.
(8) The Seller shall bear or reimburse the expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labor and material costs and, if applicable, removal and installation costs, in accordance with the statutory provisions if a defect is actually present. Otherwise, the Seller may demand reimbursement from the Customer for the costs incurred as a result of the unjustified request to remedy the defect (in particular inspection and transport costs), unless the lack of defectiveness was not apparent to the Customer.
(9) In urgent cases, e.g. if operational safety is endangered or to prevent disproportionate damage, the customer shall have the right to remedy the defect itself and to demand reimbursement from the seller of the expenses objectively necessary for this purpose. The Seller shall be notified of such self-execution without delay, if possible in advance. The right of self-performance shall not exist if the Seller would be entitled to refuse a corresponding subsequent performance in accordance with the statutory provisions.
(10) If the supplementary performance has failed or if a reasonable period to be set by the customer for the supplementary performance has expired unsuccessfully or is dispensable according to the statutory provisions, the customer may withdraw from the purchase contract or reduce the purchase price. However, in the case of an insignificant defect, there is no right of withdrawal.
11. claims of the customer for damages or reimbursement of futile expenses shall also exist in the case of defects only in accordance with section VII. and are otherwise excluded.
§ 7 Liability for damages due to fault
1. the seller’s liability for damages, irrespective of the legal grounds, in particular. from impossibility, delay, defective or incorrect delivery, breach of contract, breach of duties in contract negotiations and tort is limited, insofar as it depends in each case on fault, in accordance with these.
2. the seller is not liable in case of simple negligence of his organs, legal representatives, employees or other vicarious agents, as far as it is not a violation of essential contractual obligations. Material contractual obligations are the obligation to deliver in due time and – if agreed – to install the delivery item, its freedom from defects of title as well as such material defects which impair its functionality or usability more than insignificantly, as well as consulting, protection and care obligations which are intended to enable the customer to use the delivery item in accordance with the contract or which are intended to protect the life and limb of the customer’s personnel or to protect the customer’s property from significant damage.
3. insofar as the seller pursuant to. Digit. VII (2), this liability shall be limited to damages which the Seller foresaw at the time of conclusion of the contract as a possible consequence of a breach of contract or which it should have foreseen by exercising due care. Indirect damage and consequential damage resulting from defects in the delivery item shall also only be compensable insofar as such damage is typically to be expected when the delivery item is used for its intended purpose.
4. the above exclusions and limitations of liability shall apply to the same extent in favor of the organs, legal representatives, employees and other vicarious agents of the seller.
(5) Insofar as the Seller provides technical information or acts in an advisory capacity and such information or advice is not part of the contractually agreed scope of services owed by the Seller, this shall be done free of charge and to the exclusion of any liability.
6. the restrictions of this sec. VII shall not apply to the Seller’s liability for intentional conduct, for guaranteed characteristics, for injury to life, body or health or under the Product Liability Act.
$ 8 Limitation
1. notwithstanding § 438 para. 1 No. 3 BGB (German Civil Code), the general limitation period for claims arising from material defects and defects of title shall be one year from delivery. Insofar as acceptance has been agreed, the limitation period shall commence upon acceptance.
(2) If the goods are a building structure or an item that has been used for a building structure in accordance with its customary use and has caused the defectiveness thereof (building material), the limitation period shall be 5 years from delivery in accordance with the statutory provision (§ 438 para. 1 no. 2 BGB). Other special statutory provisions on the statute of limitations (in particular § 438 para. 1 no. 1, para. 3, §§ 444, 445b BGB) shall also remain unaffected.
3. the above limitation periods of the law on sales shall also apply to contractual and non-contractual claims for damages of the customer based on a defect of the goods, unless the application of the regular statutory limitation period (§§ 195, 199 BGB) would lead to a shorter limitation period in individual cases. Claims for damages by the customer due to intent, due to injury to life, body or health, as well as according to the Product Liability Act, shall become time-barred exclusively according to the statutory limitation periods.
§ 9 Retention of title
1.All products delivered by the Seller shall remain the property of the Seller by way of security until all present and future claims of the Seller against the Customer arising from the supply contract and the business relationship existing with the Customer (including balance claims arising from a current account relationship limited to this business relationship) have been satisfied in full.
The customer shall store the goods subject to retention of title free of charge for the seller.
3. the goods subject to retention of title may not be pledged to third parties or assigned as security before full payment of all secured claims. If third parties gain access to the goods subject to retention of title, in particular by way of seizure, the customer shall immediately notify them of the seller’s ownership and inform the seller thereof in order to enable the seller to enforce its ownership rights. If the third party is not in a position to reimburse the Seller for the judicial or extrajudicial costs incurred in this connection, the Customer shall be liable for these.
4. in case of breach of contract by the customer, in particular in case of default of payment, the seller is entitled to withdraw from the contract in accordance with the statutory provisions and/or to demand the return of the reserved goods on the basis of the reservation of title (realization case). The demand for surrender does not at the same time include the declaration of withdrawal; the seller is rather entitled to demand only the surrender of the reserved goods and to reserve the right of withdrawal.
(5) The customer shall be entitled to process and/or sell the goods subject to retention of title in the ordinary course of business until the case of realization arises. If the reserved goods are processed by the Customer, it is agreed that the processing shall be carried out in the name of the Seller and for the Seller’s account as manufacturer and that the Seller shall acquire direct ownership or – if the processing is carried out from materials of several owners or the value of the processed item is higher than the value of the reserved goods – co-ownership (fractional ownership) of the newly created item in the ratio of the value of the reserved goods to the value of the newly created item. In the event that no such acquisition of ownership should occur on the part of the Seller, the Customer shall already now transfer its future ownership or – in the aforementioned ratio – co-ownership of the newly created item to the Seller as security. If the reserved goods are combined or inseparably mixed with other items to form a uniform item and if one of the other items is to be regarded as the main item, the Seller shall, insofar as the main item belongs to the Seller, transfer to the Customer pro rata co-ownership of the uniform item in the ratio specified in sentence 1.
(6) In the event of resale of the goods subject to retention of title, the customer as reseller hereby assigns to the seller by way of security the resulting claim against the purchaser – if the seller has co-ownership of the goods subject to retention of title in proportion to the co-ownership share. The same shall apply to other claims which take the place of the reserved goods or otherwise arise with regard to the reserved goods, such as insurance claims or claims in tort in the event of loss or destruction. The Seller revocably authorizes the Customer to collect the claims assigned to the Seller in its own name as long as the Customer meets its payment obligations to the Seller, is not in default of payment, no application for the opening of insolvency proceedings has been filed and there is no other deficiency in its ability to pay. If this is the case, the seller can demand that the customer informs him of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtor (third party) of the assignment. The seller may revoke the direct debit authorization only upon the occurrence of the liquidation event.
7. the seller shall release the goods subject to retention of title as well as the items or claims replacing them at the customer’s request at the seller’s discretion insofar as their realizable value exceeds the amount of the secured claims by more than 10% or the nominal amount by more than 50%.
§ 10 Final provisions
(1) If the customer is a merchant, a legal entity under public law or a special fund under public law or if the customer does not have a general place of jurisdiction in the Federal Republic of Germany, the place of jurisdiction for any disputes arising from the business relationship between the seller and the customer shall be, at the seller’s option, the seller’s registered office in 31574 Rehburg-Loccum or the customer’s registered office. However, in such cases, the Seller’s registered office in 31574 Rehburg-Loccum shall be the exclusive place of jurisdiction for any action against the Seller.
2. the relations between the seller and the customer are exclusively subject to the law of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods of 11.04.1980 (CISG) as well as the reference standards of private international law shall not apply and their applicability is excluded.
Insofar as the contract or these General Terms and Conditions of Delivery contain loopholes, those legally effective provisions shall be deemed agreed to fill these loopholes which the contracting parties would have agreed in accordance with the economic objectives of the contract and the purpose of these General Terms and Conditions of Delivery if they had been aware of the loophole.
Status: April 2021