AGB – Terms of delivery and payment
Delivery and payment conditions FSM from 01.01.2021
These General Terms and Conditions of Delivery and Payment are an integral part of all legal transactions concluded by FSM Stamping GmbH, Hennigsdorf, FSM Syscomp GmbH, Hennigsdorf, and FSM Motec GmbH, Nauen, each with any Customer. General terms and conditions of a customer deviating from this shall only apply if their validity has been expressly agreed in writing.
2.) CONCLUSION OF CONTRACT AND FURTHER AGREEMENTS
a) Orders, conclusion of contracts and call-offs as well as any amendments and supplements thereto must be made in writing; this shall apply in particular also to any agreement on the omission of this written form requirement. Remote data transmission or transmission by fax shall be sufficient to comply with this written form requirement.
b) All verbal agreements before, during or after the conclusion of the contract must only be held against us if they have been confirmed in writing by us.
a) As a matter of principle, the point in time at which the delivery item leaves the Supplier’s works or the readiness for dispatch is notified shall be decisive for compliance with the delivery date or delivery period agreed as binding. Insofar as acceptance is to take place, the notification of readiness for acceptance shall be equivalent to the delivery date.
b) If the purchaser does not fulfill the obligations incumbent upon him or does not fulfill them in a timely manner, our obligation to comply with the delivery time shall not apply to the extent that the purchaser’s failure to do so prevents us from delivering in a timely manner. It is the customer’s responsibility to inform us in writing in good time of any obstacles within his sphere of influence, irrespective of who is responsible for them, so that an alternative delivery agreement can be made.
c) If the customer does not accept the delivered goods as agreed, the purchase price shall be due regardless. We shall store the delivery item to the best of our ability, excluding any liability for slight negligence or accidental deterioration or accidental loss, at the expense of the customer. The costs regularly amount to at least one percent of the final invoice amount; we reserve the right to prove that the costs are actually higher, which the customer must then reimburse. d) The scope of delivery shall also include, in accordance with the respective agreement, the instructions, documents and evidence required for the contractual use of the delivery item. e) We grant the Purchaser a non-exclusive right of use in accordance with §§ 69 a. ff. of the German Copyright Act (UrhG) for the software included in the scope of delivery of a product. UrhG (German Copyright Act), which is limited to the scope required for the contractual use of our delivered goods.
4.) HIGHER POWER
Damage caused by natural forces, labor disputes, riots, official measures, pandemics and other unforeseeable, unavoidable and serious events shall release the contracting parties from their performance obligations for the duration of the disruption and the extent of its effect. This shall also apply if these events occur at a time when the contractual partner concerned is in default. Both parties undertake to immediately obtain and mutually provide all information reasonably available and necessary for the resumption of business relations.
5.) INVOICING AND PAYMENT
a) Prices are net ex loading at the factory excluding packaging and unloading plus VAT, unless otherwise agreed in writing. b) Unless otherwise agreed, invoices are payable within thirty days of the invoice date without deduction; the customer is responsible for ensuring that payment can also be allocated to the invoice to be settled. We accept bills of exchange and checks only on account of performance; they shall not be deemed to fulfill the payment obligation until they have been irrevocably credited to our account.
c) Payment means the irrevocable receipt of the amount at our disposal. Discount, bank charges or similar fees shall be borne by the customer.
d) Counterclaims may only be set off if they are undisputed or have been legally established.
6.) RISK ASSUMPTION AND OBLIGATION TO GIVE NOTICE OF DEFECTS
a) The risk of accidental loss or accidental deterioration shall pass to the Purchaser upon acceptance of the goods. In the event of refusal of acceptance, the time of acceptance shall be the time at which the Purchaser would have been obliged to accept the ordered goods.
b) Insofar as a formal acceptance of the delivery goods does not take place, the risk of accidental loss or accidental deterioration shall pass to the Purchaser as soon as the delivery goods leave the works. This shall apply irrespective of any individual agreements on the payment of shipping costs or delivery.
c) The Purchaser shall also accept partial deliveries and defective goods to a reasonable extent, if necessary subject to a corresponding reservation. In any case, returns must be notified in advance in writing, stating the reasons for the return. The customer shall be liable for damage or loss of goods returned without notification.
d) The goods shall be inspected externally by the Purchaser in each case after receipt of the delivery. If we do not receive written notification to the contrary within seven days of delivery, stating the deviations complained of, the goods shall be deemed to have been duly delivered in terms of type, quantity and visible condition.
e) Upon receipt of the delivery, the Purchaser shall also check the documentation in writing or contained on data storage media which is part of the agreed scope of delivery. If we do not receive written notification to the contrary within 7 days of delivery, the documentation belonging to the delivered goods shall be deemed sufficient for the contractual use of the delivered goods.
7.) POOR DELIVERY AND COMPENSATION FOR DAMAGES
a) In the event of defects in the delivered goods, the customer must inform us immediately so that we can inspect the alleged defect and remedy it if necessary. In this case, the Purchaser shall do everything possible to minimize the damage, in particular, if necessary, temporarily discontinue further processing of the defective delivery item.
b) The customer shall not be entitled to effect rectification or replacement delivery himself or through third parties as long as we were not demonstrably unable to rectify the defects within a reasonable period of time set for us for this purpose. This may only be deviated from if immediate action cannot be avoided for reasons of operational safety or to prevent disproportionately large damage. The Purchaser shall provide evidence of such a requirement.
c) Any liability for improper rectification by the purchaser or a third party is excluded. Furthermore, we shall not be liable for any changes made to the delivered goods without our written consent.
d) Furthermore, we shall not assume any warranty for damage caused by improper or unsuitable use, faulty assembly, faulty operation, natural wear and tear, inadequate maintenance, unsuitable operating materials or operating locations or chemical, electrochemical or electrical influences from the purchaser’s sphere of influence.
e) Any further liability on our part, apart from that for damage to life, limb or health, is excluded, unless this is due to intent or gross negligence on our part.
f) All claims of the customer, excluding those based on intent or gross negligence on our part, shall become statute-barred twelve months after acceptance of the delivery item or after the expiry of a date equivalent to the acceptance date.
8.) RECOURSE PROVISIONS AND STATUTE OF LIMITATIONS
a) Insofar as the contractual use of the delivered goods leads to the infringement of industrial property rights or domestic copyrights, we are obligated to procure the right to further use for the customer at our expense or to modify the delivered goods so that there is no longer any infringement of third-party rights. This shall not apply if the infringement of third party rights is due to an instruction of the Purchaser, an unauthorized modification of the delivery item or its non-contractual use by the Purchaser.
b) If the provision of the right to further use and the modification of the delivery item are economically unreasonable or not possible within a reasonable period of time, both contracting parties may withdraw from the contract with mutual restitution of the services received. Further claims of the customer are excluded, unless they are based on gross negligence or intentional conduct on our part.
c) Any warranty for defects of title shall be subject to the condition that the customer informs us without delay of any asserted infringements of industrial property rights or copyrights, that the customer supports us to the best of his ability in procuring the rights or modifying the delivered goods and that the customer provides us with all defensive measures, including any necessary remedies. irrevocably reserved for out-of-court settlements.
d) Any claims of the Purchaser based on defects of title shall become statute-barred within twelve months after acceptance of the delivery item or after the point in time which is equivalent to the time of acceptance, unless the claims are based on intent or gross negligence on our part.
9.) AGREEMENTS ON THE PROVISION OF SERVICES
a) Documents and materials provided by us shall remain our property and may only be used as intended. The Purchaser shall also be liable for improper use to the extent that consequential damages are caused thereby.
b) The Purchaser shall treat as confidential all business or technical details which become known to the Purchaser on the occasion of the initiation, conclusion and performance of the contract. Even within the Purchaser’s business, such information may only be made available to those and only to the extent that they require such information for the performance of the contract. All rights to technical and business information remain exclusively with us.
c) The customer shall be liable for all damages incurred by us as a result of a breach of the confidentiality agreement. This includes, in particular, the profit lost to us.
10.) RESERVATION OF OWNERSHIP
a) We reserve title to all delivery items until full payment of all claims to which we are entitled from the business relationship with the customer. In the case of a current account, the entire reserved goods available in each case shall serve as security for the respective outstanding balance. If the value of the security existing for us on the goods subject to retention of title exceeds the amount of the claims against the customer by more than 20%, the customer may demand that securities be released to this extent at the customer’s discretion until the aforementioned upper limit is no longer exceeded.
b) The partial ownership resulting from the processing, combination or mixing of delivered goods shall be deemed to be reserved goods within the meaning of this agreement.
c) The customer may only resell or use the goods subject to retention of title within the scope of his ordinary business operations, in which case claims for remuneration attributable to resale or other use shall be transferred to us in the amount of the outstanding invoice amount for the delivery of goods to the customer.
d) The Purchaser hereby assigns the claims accruing to it from a resale or other disposal of the Retained Goods up to the respective amount of the outstanding invoice for the Retained Goods.
e) If the customer becomes insolvent or if an application is made to open insolvency proceedings against the customer’s assets, the customer hereby irrevocably grants us the right to withdraw from the contract and to demand the immediate return of the delivery item.
11.) CHOICE OF LAW AND PLACE OF JURISDICTION
a) The contracts concluded with us are subject to German law as a whole.
b) The place of jurisdiction for all disputes arising from this agreement is Neuruppin; the contracting parties expressly agree that we are also entitled to bring our payment actions at the legal place of jurisdiction of the purchaser at our discretion.
12.) 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