General Terms and Conditions of Sale and Delivery of Fischer Elektromotoren GmbH
1.1 These General Terms and Conditions of Sale and Delivery apply only to enterprisers in accordance with Section 14 of the German Civil Code (BGB).
1.2 We provide all our deliveries and services exclusively under these Terms and Conditions of Sale and Delivery. We only accept the customer’s conflicting or deviating terms and conditions after written consent.
2. Offer and order
2.1 Our offers are subject to confirmation and are not binding.
2.2 Authoritative for the order is our written order confirmation. This order confirmation can also be effected by the sending of an invoice. Should there be any objections to the content of the order confirmation, the order confirmation must be objected to immediately. Otherwise, the contract is concluded in accordance with the order confirmation..
2.3 Verbal or telephonic agreements become part of the contract only after written confirmation.
2.4 Drawings, illustrations, dimensions, weights and other performance data outside the offer and the order confirmation are not binding.
3. Machining, processing and assembly of submitted parts
3.1 Parts sent to us for machining, processing and assembly must be sent carriage paid to our factory and, if necessary, in good packaging with the addition of a bill of lading and a delivery note.
3.2 The material or the technical properties of the submitted parts must be specified. Pre-processed parts or parts provided for assembly must be delivered in the correct size and within the required tolerances.
3.3 If these conditions are not met, we may charge for the costs of overtime as well as for replacements for prematurely worn or damaged tools, or we may withdraw from the contract.
3.4 Waste material from the parts sent in for machining or processing becomes our property.
4. Prices and terms of payment
4.1 The prices stated in the order confirmation are authoritative. They apply ex works and do not include packaging, freight, postage, value insurance and VAT.
4.2 Transport insurance is provided only at the customer’s request and expense.
4.3 Unless otherwise agreed, payments must be made as follows
a) Within 14 days of the invoice date with a 2 % discount or 30 days net.
b) In case of a first time business connection and for repairs: in advance or when ready for dispatch. Assembly costs are payable upon receipt of the invoice. Partial deliveries are invoiced immediately.
4.4 If it is agreed that a contract will be cancelled, the expenses and material consumption incurred up to that date are to be reimbursed.
5. Reservation of title
5.1 We reserve the title to all goods delivered by us until all claims have been paid in full.
5.2 Our taking back of the delivery item shall not constitute a withdrawal from the contract, unless we have expressly stated this.
5.3 The customer may neither sell, pledge nor transfer the delivery item for security. In the event of seizures as well as confiscations or other dispositions by third parties, he must notify us immediately.
5.4 The customer is entitled to dispose of the delivery item within the scope of a proper course of business, subject to the revocation that is permitted for good cause. In the event of resale, the customer already assigns to us now all claims arising from the resale, in particular payment claims but also other claims related to the sale, in the sum of the final invoice amount (including VAT). This applies regardless of whether the delivery item has been resold without or after processing. The customer is entitled to collect the assigned claims in a fiduciary manner until a revocation by us that is permitted for good cause. For good cause, we are entitled to disclose the assignment of claims also on behalf of the customer to the third-party debtors. The customer’s authorisation to collect expires on notification of the assignment to the third-party debtor. In the event of revocation of the authorisation to collect, we can demand that the customer informs us of the assigned claims and their debtors, provides all information necessary for collection, hands over the corresponding documents and informs the debtors of the assignment.
5.5 If the delivery item is processed with other items that do not belong to us, we shall acquire co-ownership of the new item in the ratio of the value of the delivery item to the value of the other processed items at the time of processing. In addition, the same applies to the goods resulting from processing as to the provisionally delivered goods.
5.6 We undertake to release the securities to which we are entitled at the request of the customer at our discretion, to the extent that their realizable value exceeds the claims to be secured by more than 20 %.
5.7 The application for the opening of insolvency proceedings entitles us to withdraw from the contract and to demand the immediate return of the delivery item. The application for the opening of insolvency proceedings entitles us to withdraw from the contract and to demand the immediate return of the delivery item.
6.1 Delivery takes place at the risk of the customer.
6.2 Delivery periods and dates specified by us are non-binding, unless they have been agreed as binding.
6.3 The delivery time arises from the agreements between the contracting parties. Compliance therewith by us presupposes that all commercial and technical issues between the contracting parties have been resolved and that the customer has fulfilled all his obligations, e.g. the provision of the required official certificates or approvals or the making of a down payment. If this is not the case, the delivery time shall be extended appropriately. This does not apply if we are responsible for the delay.
6.4 We are not responsible for delays in delivery and performance due to force majeure and events that are unforeseeable for and for which we are not at fault that make delivery or performance significantly more difficult or impossible for us, even with bindingly agreed deadlines and dates and even if we are in default of delivery.
6.5 The customer can only withdraw from the contract or claim compensation for damages in place of performance if he has previously set us a reasonable grace period with the threat of rejection.
6.6 If, after notification of readiness for dispatch, the shipment is delayed for reasons for which the customer is responsible, the customer shall be charged each month for the costs incurred by storage, in the case of storage in our factory at least 0.5% of the invoice amount for the stored parts. We are entitled to store the delivery item outside our factory.
6.7 If, taking into account the legal exceptional cases, the customer grants us a reasonable period of time for performance and the deadline is not met, the customer is entitled to withdraw from the contract within the scope of the statutory provisions.
7. Transfer of risk
The risk is transferred to the customer at the latest with the dispatch of the delivery parts ex works, even if carriage-paid delivery and assembly have been agreed. If dispatch is delayed as a result of conditions for which we are not responsible, the risk shall be transferred to the customer from the day when the goods are ready for dispatch. Any discrepancies arising from the shipment must be notified to the supplier in writing immediately after receipt of the goods. Partial deliveries are permissible if they are reasonable for the customer.
8. Material defects
8.1 The customer is obliged to inspect every delivery immediately upon receipt and to notify any recognisable defects immediately in writing.
8.2 In the event of a defect for which we are responsible, we are entitled to render subsequent performance by remedying the defect at our discretion or by supplying a defect-free item. If the subsequent performance is refused, if it has failed or if it is unreasonable for the customer, the customer can withdraw from the contract or demand a reduction in the purchase price.
8.3 Claims for defects by the customer lapse after 12 months from the date of delivery. Insofar as limitation periods are shortened by these regulations, this does not apply if the law stipulates longer time limits pursuant to Section 438 (1) No. 2 of the German Civil Code (BGB) (buildings and articles for buildings), Section 438 (3) of the German Civil Code (BGB) (fraudulent intent) and Section 479 of the German Civil Code (BGB) (claim for recourse).
8.4 No warranty shall be given in particular in the following cases: inappropriate or improper use, incorrect assembly or commissioning by the customer or third parties, natural wear and tear, incorrect or negligent handling, improper maintenance, unsuitable equipment, influences that are not the responsibility of the supplier.
9. Compensation for damages
9.1 We are liable for intent and gross negligence. We shall only be liable for slight negligence if it concerns a breach of essential contractual obligations arising from the nature of the contract or where a breach of same jeopardises the achievement of the purpose of the contract. Even then, the compensation for damages is limited to the contractually typical, foreseeable damages. In all other cases of slight negligence, claims for compensation for damages by the customer, regardless of the legal grounds, are excluded.
9.2 The above limitation of liability does not apply to claims under the Product Liability Act, in the event of injury to life, body or health.
9.3 3 In the case of claims for compensation for damages due to material defects, the limitation of liability shall additionally not apply if we have fraudulently concealed a defect or have given a guarantee of the properties of the item. In addition, a limitation period of 12 months applies to claims for compensation for damages due to material defects.
10. Liability for defects in the processing of provided parts
We are not liable for defects resulting from the behaviour of the material when processing provided parts. If provided parts become unusable due to material defects or other defects during processing, we are to be reimbursed for the processing costs incurred. If workpieces become unusable due to circumstances for which we are responsible, we take over the processing of similar replacement pieces.
11. Call-off orders
Unless otherwise agreed, a period of 12 months from the date of the order confirmation is binding for a call-off order for both parties.If the ordered quantity has not been accepted by the expiry of the 12 months, we grant a grace period of four weeks with prior notice. Unless otherwise agreed, the customer is obliged to accept and pay for the parts that have not been called off after the expiry of the grace period. We are also entitled after the expiry of the grace period to invoice for the quantity of units actually accepted according to our volume discount price.
12. Property and copyright
All offer documents, drawings, quotes, samples and the like remain our property and must be returned upon request. A right of retention does not exist, for whatever reason. The documents may not be made available to third parties.
13. Place of fulfilment, place of jurisdiction, applicable law
13.1 Place of fulfilment for delivery and payment is for both parties exclusively the registered office of our company.
13.2 The place of jurisdiction for all disputes arising from the contractual relationship as well as its formation and its effectiveness shall be, in the case of merchants, for both parties the court of law with responsibility for the registered office of our company. We may also institute proceedings at the customer’s registered office.
13.3 The contractual relationship is governed by German law to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).