AEB Purchasing Conditions

Conditions of purchase FSM from 01.01.2021

I. GENERAL

These General Terms and Conditions of Purchase are an integral part of all legal transactions concluded by FSM Stamping GmbH, Hennigsdorf, FSM Syscomp GmbH, Hennigsdorf and FSM Motec GmbH, Nauen, each as purchaser or customer with any supplier or contractor. Any general terms and conditions of business of a supplier deviating from this shall only apply if their validity has been expressly agreed in writing.

II. Time of Performance, Contractual Penalty in the Event of Non-Performance

1. The timeliness of deliveries or subsequent performance shall be determined by the date of receipt at the place of receipt specified by the Purchaser; the timeliness of deliveries with installation or assembly and of services shall be determined by their acceptance.
2. In the event of a recognizable delay in a delivery or service, the purchaser must be notified immediately and his decision obtained.
3. If the agreed deadline is exceeded for reasons for which the Contractor is responsible, the Purchaser shall be entitled to charge a contractual penalty of 0.3% for each commenced working day of delay, but not more than 10% of the total amount.

III. Transfer of risk, shipment, place of performance

1. In the case of deliveries, the risk shall pass upon acceptance or upon receipt at the place of receipt specified by the Purchaser.
2. Unless otherwise agreed, shipping and packaging costs shall be borne by the Contractor. In the event of pricing ex works or ex sales warehouse of the Contractor, the goods shall be shipped at the lowest cost in each case, unless the Purchaser has specified a particular mode of transport. Additional costs due to non-compliance with shipping instructions shall be borne by the Contractor. In the case of free delivery to the consignee, the customer may also determine the mode of transport. Additional costs for any accelerated transport necessary to meet a delivery date shall be borne by the Contractor.
3. Each delivery shall be accompanied by packing slips or delivery bills indicating the contents and the complete order codes. The shipment must be notified immediately with the same information.

IV. Payments

1. Unless otherwise agreed, payments shall be made within 14 days less 3% discount or within 60 days net.
2. The payment period shall commence as soon as the delivery or service has been provided in full and the properly issued invoice has been received. Insofar as the Contractor has to provide material tests, test reports, quality documents or other documents, the completeness of the delivery and service also presupposes the receipt of these documents. Discount deduction shall also be permissible if the Purchaser offsets or withholds payments in an appropriate amount due to defects; the payment period shall commence after complete elimination of the defects.
3. If the Contractor is an entrepreneur, the Customer shall only be in default if it fails to pay in response to a reminder sent by the Contractor after the purchase price has become due.
4. Payments do not imply recognition of the deliveries or services as being in accordance with the contract.

V. Entrance examinations

1. Immediately upon receipt of the deliveries, the Purchaser shall check whether they correspond to the ordered quantity and type, whether there is any externally visible transport damage or externally visible defects.
2. If the Purchaser discovers a defect during the aforementioned inspections, it shall notify the Contractor thereof. If the purchaser discovers a defect later, he will also report this.
3. Complaints may be made within 3 months of delivery or performance or, if the defects are only noticed during processing or use, after their discovery.
4. The Purchaser shall not be obliged to perform any further checks and notifications vis-à-vis the Contractor other than those specified above.

VI. liability

1. The Contractor shall provide a warranty for its deliveries and services for a period of three years, unless the law provides for longer periods. The period begins with the transfer of risk. In the case of deliveries to places where the Purchaser carries out orders outside its works or workshops, it shall commence upon acceptance by the Purchaser’s principal, at the latest one year after the passing of risk.
2. If defects are detected before or at the time of transfer of risk or during the period specified in par. 1., the Contractor shall, at its own expense and at the discretion of the Purchaser, either remedy the defects or make a new delivery or performance free of defects. This also applies to deliveries for which the inspection was limited to random samples. The Purchaser’s choice shall be made at its reasonable discretion.
3. If the Contractor fails to effect subsequent performance within a reasonable period to be set by the Purchaser, the Purchaser shall be entitled to rescind the contract in whole or in part without compensation or to demand a reduction in price or to effect subsequent improvement or new delivery itself or have it effected at the Contractor’s expense and to claim damages in lieu of performance. § 281 para. 2 and § 323 para. 2 BGB remain unaffected.
4. Rectifications can be carried out without setting a deadline at the expense of the contractor if delivery is made after the occurrence of the delay.
5. The same shall apply if the Purchaser has a special interest in immediate supplementary performance due to the avoidance of its own delay or other urgency.
6. The aforementioned claims shall become statute-barred one year after notification of the defect.
7. Further legal claims remain unaffected.
8. Insofar as the Contractor makes a new delivery or rectifies a defect within the scope of subsequent performance, the period specified in Art. VIII para. 1 shall start to run again.
9. The Contractor shall bear the costs and risk of returning defective delivery items.
10. In the case of processing orders, the Contractor shall also be liable for the material provided by the Purchaser, including any consequential damage resulting from its damage or destruction.

VII. Transfer of orders to third parties

The transfer of orders to third parties without the written consent of the Purchaser is not permitted and entitles the Purchaser to withdraw from the contract in whole or in part and to claim damages.

VIII. Provision of materials

1. Materials provided shall remain the property of the Purchaser and shall be stored, designated and managed separately free of charge. Their use is permissible only for orders of the customer. In the event of a reduction in value or loss, the Contractor shall provide compensation. This also applies to the charged transfer of order-related material.
2. Processing or transformation of the material is carried out for the customer. The latter shall immediately become the owner of the new or transformed item. If this is not possible for legal reasons, the Customer and the Contractor agree that the Customer shall become the owner of the new item at any time of processing or transformation. The Contractor shall store the new item free of charge for the Customer with the due care of a prudent businessman.

IX. Tools, molds, patterns, secrecy, etc.

1. Tools, molds, samples, models, profiles, drawings, standard sheets, printing templates and gauges provided by the Purchaser, as well as items manufactured thereafter, may not be passed on to third parties or used for purposes other than the contractual purposes without the written consent of the Purchaser. They must be secured against unauthorized inspection or use. Subject to further rights, the Customer may demand their surrender if the Contractor breaches these obligations.
2. The Contractor shall not make information obtained from the Purchaser accessible to third parties unless it is generally known or is lawfully known to the Contractor in some other way. Insofar as the Purchaser has agreed to the passing on of orders to third parties, such third parties shall be obligated accordingly in writing.

X. Special right of termination

If the Contractor ceases to make payments, if a provisional insolvency administrator is appointed or if insolvency proceedings are opened against the Contractor’s assets, the Purchaser shall be entitled to withdraw from the contract in whole or in part. In the event of rescission, the Purchaser may make use of existing equipment or deliveries and services previously provided by the Contractor for the continuation of the work in return for reasonable compensation.

XI. Compliance requirements

The Contractor undertakes to comply with the legal regulations relevant in Germany. In particular, he undertakes not to tolerate any form of corruption or bribery or to engage in it in any way, regardless of the business partner and with the prospect of what benefits. In the event of non-compliance with the prohibition of bribery, granting of advantages or taking of advantages, the Contractor shall assume full liability for damages as well as, in addition, a lump-sum contractual penalty in the amount of 300% of the relevant payments made.

XII. Place of jurisdiction, applicable law

1. The place of jurisdiction shall be Berlin or, at the Purchaser’s option, the Supplier’s place of business.
2. German law shall apply, to the exclusion of the UN Convention on Contracts for the International Sale of Goods.

XIII Supplementary provisions

Should one or more provisions of these contractual terms and conditions be or become invalid in whole or in part, the other provisions of the agreement shall continue to apply unaffected. Both parties undertake to immediately replace the wholly or partially invalid agreement with one that comes as close as possible in economic and legal terms to the agreement that is no longer valid. The same shall apply if it becomes apparent in the course of the contractual relationship that this framework agreement contains a loophole that needs to be closed.

© FSM 01.01.2021