General Terms and Conditions of Sale and Delivery
Friedrich Ossenberg-Schule GmbH + Co. KG, Amerikastraße 2, 58675 Hemer, GERMANY
(Hereinafter known as FOS®)
1. General, Scope of application
1.1
The provisions below shall apply for all offers, goods and services in purchase, rental and other contracts including future contracts and contractual relationships. If the Customer’s terms and conditions differ from, or are contrary to, our own provisions, they shall not be recognised, unless FOS® has expressly consented to them in writing. These general contractual terms and conditions shall also apply in those cases in which FOS® accepts a performance from a Customer without reservation while he is aware of the fact that his T&Cs differ from, or are contrary to, our T&Cs.
1.2
FOS® shall only enter into contracts with entrepreneurs. An entrepreneur is a natural person or legal entity or a partnership having legal capacity, acting in the course of its commercial or independent professional performance when entering into a legal transaction.
2. Offers, Order confirmation
2.1
Unless expressly agreed otherwise, offers made by FOS® shall be subject to change without notice and non-binding. The Customer shall be bound by the order placed by him for a period of three weeks. The order shall only be regarded as having been accepted if it has been confirmed in writing by FOS®. This shall apply accordingly for supplements and amendments.
2.2
FOS® shall reserve the right to make amendments to the models, design or fittings, provided that the subject-matter of the contract is not modified so that the Customer can no longer be expected to accept it.
2.3
Every contract shall be entered into subject to the reservation that FOS® is supplied on time with the correct goods by its supplier. This shall only apply in the event that FOS® is not responsible for the supplier’s failure to supply the correct goods on time, but in particular if FOS® has entered into a covering contract with the supplier. FOS® shall not accept any procurement risk.
3. Special productions
3.1
If orders are placed for special productions, all information about finish, dimensions etc. must, without exception, be confirmed in writing between the Parties. If goods are supplied to sample, drawings or information provided by the Customer, he shall be liable for any breach of third party proprietary rights and for the accuracy of his specifications. The specifications supplied by the Customer shall remain his property. FOS® shall refrain from registering his own proprietary rights.
3.2
The Parties shall only use all documents (also including samples, models and data) and knowledge received as a result of the business relationship for the joint aims, and keep them secret from third parties with the same care applied for their own documents and knowledge, if they are marked as being confidential or if it is obvious that they are secret. This shall not apply for documents and knowledge in the public domain or which was already known by the receiving Party upon receipt of the documents, or if the receiving Party receives said documents subsequently from a party entitled to pass them over, or if said documents enter the public domain subsequently.
4. Prices
4.1
Unless agreed otherwise, the prices quoted in the offers by FOS® shall apply for 14 days from the date of the documents. It shall be the prices quoted in EURO in the order confirmation which shall count. Goods and services supplied over and above this by FOS® shall be invoiced separately. If remuneration has not been specifically agreed, the price list in force at the time at which the offer is submitted by FOS® shall apply.
4.2
The prices shall be quoted ex performances FOS® excluding transport packing.
4.3
In addition to the agreed prices, value added tax shall have to be paid at the rate in force at the point in time the service is rendered.
4.4
Unless agreed otherwise, the prices shall be ex works (Incoterms, 2010) excluding freight, postage, insurance and packing as normal within the trade.
4.5
FOS® shall maintain offset accounts for pallets and wire mesh crates exchanged. The Customer or haulier shall be notified of any outstanding balance there may be as necessary. If, having set a reasonable period of time, the balance is not settled, FOS® shall reserve the right to invoice the Customer for the equivalent value of the outstanding balance. Likewise, FOS® shall undertake to settle up with the Customer if FOS® has a negative balance.
4.6
If there is a significant change in the prices of raw materials, wages, materials, logistics or electricity, FOS® shall be entitled to adjust the price accordingly taking the above factors into consideration.
5. Delivery
5.1
FOS® shall reserve the right to supply additional or short deliveries attributable to production methods within limits normal within the trade up to a maximum of 10% of ordered quantities. Tools shall remain the property of FOS® and in its possession, even if some of the costs thereto have been paid for by the Customer.
5.2
Delivery dates shall only be binding in those cases in which they are expressly agreed in writing as being binding. The delivery period shall run from the order confirmation date until the goods leave the performances and shall only be agreed as an approximation. The agreement of a delivery period in terms of specific calendar days shall not constitute a specific delivery period in accordance with Section 376 Para 1 of the German Commercial Code [HGB]. Delivery dates or periods, be they agreed on a binding or non-binding basis, must always be made in writing.
5.3
If FOS® fails to comply with a delivery period it agrees as being binding, the Customer may, after sending FOS® a written reminder after FOS® is in default and setting FOS® a reasonable subsequent period of time of at least three weeks within which to deliver, assert other rights. A subsequent period of time will not have to be set if the Customer has, when entering into the contract, reserved the right to withdraw from the contract in the event that FOS® fails to comply with the binding delivery date. In this case the Customer shall not be able to assert a compensation claim for damages, unless the reproach of intent or gross negligence is levelled at FOS® or one of its legal representatives or assistants with regard to the default. This shall also apply for breaches against duties committed in the course of the contractual negotiations.
5.4
In the event of strikes or force majeure, such as, for example, mobilisation, war, civil unrest, natural catastrophes etc., FOS® shall be entitled to postpone its performance for the duration of the hindrances plus a reasonable follow-up period for starting up or, if the performance is, or becomes, actually or economically impossible, to withdraw from the contract. This shall also apply in commercial relationships if FOS® is not supplied within a reasonable period of time and FOS® is able to prove that it had entered into a contract for the subject-matter of the contract with another supplier (covering transaction). In the cases named in this paragraph the Customer shall, however, not be entitled to withdraw from the contract if he is responsible for the hindrances.
5.5
Every part-delivery for a long-term supply contract shall be regarded as a separate contract.
5.6
Part-deliveries and part-performances shall, as far as this is normal within the trade, be allowed, and shall be invoiced separately.
5.7
If a different finish for the purchased item other than that ordered is requested by the Customer prior to delivery, and if FOS® agrees to this, the delivery period shall remain uninterrupted. The delivery period shall be extended by the period of time required for the different type of finish and agreed anew.
5.8
If the Customer is in default with taking delivery of the goods, FOS® shall be entitled, after a subsequent period of time to be set by FOS® has expired, to reject the fulfilment of the contract and demand damages as compensation. The compensation for damages shall amount to 30 % of the agreed price, whereby the Customer shall retain the right to prove that FOS® has not suffered any loss or that the loss suffered is less than the damages which FOS® may otherwise claim. Alternatively, FOS® may dispose of the goods otherwise and supply the Customer within a new and reasonable period of time.
6. Dispatch/Passing of risk
6.1
If FOS® dispatches the subject-matter of the contract at the Customer’s request, this shall take place at the Customer’s risk. The risk for all deliveries shall pass over to the Customer when the goods have been made available for collection by the haulier, freight forwarder or other persons contracted to transport the goods. An agreed delivery assumes that the access road can be negotiated with a heavy goods vehicle.
6.2
If dispatch is delayed at the Customer’s request, the Customer shall be in default with taking delivery upon the receipt of written notification from FOS® that the consignment is ready for delivery. In this case, the risk of damage or loss of the purchased thing shall pass over to the Customer at the point in time of notification that the goods are ready for dispatch. The same shall apply in the event that the Customer is in default with taking delivery of a consignment. Moreover, two weeks after notification that the consignment is ready for dispatch, FOS® shall, in this case, be entitled to invoice the Customer for the charges incurred by storage in its premises at least 1% of the invoiced sum per month.
6.3
At the Customer’s wish and expense FOS® shall insure the items against destruction, loss and damage in transit and/or for the period of time they are in storage at FOS® or third party.
6.4
FOS® shall reserve the right to select the dispatch route, in particular, FOS® may, if necessary, contract an outside haulier, unless the Customer legally stipulates a regulation governing this before the delivery period expires.
6.5
Subject to contractual agreements otherwise, the terms of delivery in all contracts shall be ex works as defined in Incoterms 2010.
6.6
Should FOS® bear the transportation risk, the Customer shall undertake to inspect the consignment immediately following delivery and notify FOS® of any damages or losses there may be by means of the haulier’s damage report and written customer notification, which must be signed by the Customer. The alleged damaged items supplied must be kept ready for inspection by the employees of FOS® in the condition they are in at the point in time at which the damage was noted.
7. Terms of payment
7.1
Invoices shall be payable in accordance with the date therein or, if a date has not been stated, within 14 days from the date of invoice net cash free to the payment office of FOS®. Payments may only be made direct to FOS® or to the persons authorised in writing by FOS® to accept payment. The payments shall be regarded as having been paid to that place at which FOS® is able to dispose of the sum. Discount fees and costs shall be for the Customer’s account. Payments may only be paid in the agreed currency, that is, EURO.
7.2
Spare parts and repairs shall be supplied and/or carried out for net payment in cash or cash on delivery.
7.3
Irrespective of specifications made by the Customer, FOS® alone shall specify against which account, if there is more than one account, incoming payments are to be offset.
7.4
Part-deliveries as well as additional fittings supplied subsequently are to be invoiced separately in each case.
7.5
If the payment is handled by the Customer via a central settlement organisation, the invoice shall only be settled with debt-discharging effect when the payment is credited to the account of FOS®.
7.6
If, after a contract has been signed, FOS® identifies that its claim to payment is at risk as a result of the Customer’s inability to pay what he owes, FOS® may withhold his own performance and set the Customer a reasonable period of time in which the Customer has to pay or furnish a security concurrently with delivery. If the Customer refuses to do so or if the period of time he has been set expires without the Customer rendering payment or furnishing a security, FOS® may withdraw from the contract and demand compensation for damages instead of performance.
8. Reservation of title
FOS® shall be furnished with the following securities until all its accounts have been fulfilled. (including all balances of its current account account), to which FOS® is entitled from any legal reason against the Customer now or in the future. Such securities shall be released as FOS® chooses, if and insofar as their value persistently exceeds the value of the accounts by more than 10%.
8.1
All goods supplied shall remain the property of FOS® until all the accounts of FOS® have been fulfilled without exception, in particular also including the respective balances of account, to which FOS® is entitled in the course of the business relationship (Balance reservation) under the respective contract. This shall also apply for accounts materialising in the future and contingent accounts and even if payments are made to specifically designated accounts. This balance reservation shall lapse for once and for all when all accounts still outstanding at the point in time of payment and covered by this balance reservation are settled. FOS® shall be entitled to assign its claims for payment existing against the Customer.
8.2
The Customer may resell the goods subject to reservation of title in a normal commercial transaction. He is not entitled to assign the goods subject to reservation of title by bill of sale as a security or to pledge them. The goods may only be resold subject to the reservation of title being passed on with them so that it still applies as before. In the event that the Customer does not pass on the reservation of title when reselling goods, he shall assign his account for the resold goods against the buyer to FOS®. This shall also apply for balances of account from a current account if the Customer has made such agreements with his buyer. FOS® hereby accepts these assignments. FOS® may demand that the Customer informs FOS® of the disclosed accounts and discloses the identity of the debtor. FOS® shall then be entitled to disclose the assignment to the buyer as it chooses.
8.3
If the subject-matter of the contract undergoes subsequent treatment, FOS® shall be regarded as the manufacturer within the meaning of Section 950 I of the German Civil Code [BGB]. When the goods subject to reservation of title, are processed, mixed or connected with other goods belonging to the Customer, FOS® shall acquire proportional co-ownership of the new goods in proportion to the value of the goods subject to reservation to the value of the sum invoiced for the other goods used. If the title of FOS® lapses as a result of the goods subject to reservation of title being connected to, or mixed with, other goods, the Customer shall consequently transfer to FOS® here and now the title rights to which he is entitled to the new thing or to the value of the figure invoiced for the goods subject to reservation of title and keep them in safekeeping for FOS® free of charge.
8.4
The Customer may only sell goods subject to reservation of title in a normal commercial transaction at his normal terms and conditions of business and for as long as he is not in default, provided that he reserves the title to such goods and the account created by reselling the goods passes over to FOS®. The Customer is not entitled to dispose of the goods subject to reservation of title by other means. For the purposes of this provision, the use of the goods subject to reservation of title to fulfil contracts for services shall also be regarded as a resale.
8.5
The account created by reselling the goods subject to reservation of title shall be assigned together with all securities which the Customer acquires for the account here and now to FOS®. They shall serve as a security for the same value as the goods subject to reservation of title. If the goods subject to reservation of title are sold by the Customer together with other goods not sold to him by FOS®, the account materialising from the resale in proportion to the sum invoiced for the goods subject to reservation of title value to the value of the invoice for the other goods sold shall be assigned to FOS®. When goods in which FOS® has a co-ownership share in accordance with Number 8.3 are sold, a proportion of the value of the goods reflecting the size of his co-ownership share shall be assigned to FOS®.
8.6
The Customer is entitled to collect accounts created by a resale. This collection authorisation shall lapse in the event that it is revoked by FOS®, and no later, however, than when the Customer is in default with payment, a draft from the Customer is not honoured or an application is made to open insolvency proceedings on the Customer’s assets. FOS® may only make use of its right of revocation if, after signing a contract, it becomes perceptible that the claim to payment from this or from other contracts with the Customer is at risk as a result of the Customer’s insolvency. At the request of FOS® the Customer shall be obliged to inform his buyers immediately of the assignment to FOS® and to let FOS® have the documents required for collection. In such a case the Customer is not entitled to assign the account.
8.7
The Customer shall have to inform FOS® immediately of a levy of execution or other third party impairments. The Customer shall bear all costs which have to be incurred to cancel the seizure or to transport the goods subject to reservation of title back to FOS® to the extent that these are not paid by third parties.
8.8
If the Customer should find himself in default or if a draft of his is not honoured on time, FOS® shall be entitled to take back the goods subject to reservation of title, and to this end enter the Customer’s premises if necessary. The same shall apply if, after the contract is signed, it becomes perceptible that the claim to payment of FOS® created by this contract, or by other contracts with the Customer, are at risk due to his insolvency. Taking back the goods subject to reservation of title shall not constitute withdrawal from the contract. The regulations of the German Insolvency Code shall not be affected by the above. The bailiff shall be authorised to hand over the goods to FOS® after a levy of execution has been cancelled.
8.9
If the Customer is in default with payment, FOS® may demand the return of the item covered by the reservation of title within a reasonable period of time and dispose of the item otherwise, and, following payment by the Customer, supply him with another item within a reasonable period of time.
8.10
The Customer shall be obliged to store the goods belonging to FOS® properly and to obtain proper insurance cover for them. The Customer shall be obliged to keep the purchased item in a proper condition while FOS® has reservation of title.
8.11
While FOS® has reservation of title the purchased thing may only be used within the territory of the state to which it was delivered and it must not be exported from the aforesaid state.
8.12
Provided that FOS® has not expressly stated otherwise, taking back the goods subject to reservation of title shall not constitute withdrawal from the contract. The goods shall instead be taken back to secure the claims of FOS®. The Customer shall still be obliged to fulfil the contract. The costs of taking back such goods and the sale of the purchased thing shall be the Customer’s responsibility.
9. Withdrawal from the contract (Impossibility, Default)
9.1
If FOS® is in default with handing over an item, and if FOS® is reproached with the charge of gross negligence or intent, FOS® shall pay compensation to the Customer for all the losses the latter incurs as a result. In the event of ordinary negligence, no claims asserted by the Customer shall be admitted.
9.2
If a supplier fails to supply FOS®, both Parties shall be entitled to withdraw from a contract.
9.3
FOS® is entitled to withdraw from a contract for the following reasons:
9.3.1
If, contrary to the assumption existing prior to a contract being signed, it turns out that the Customer is not creditworthy. Lack of creditworthiness may be assumed without more ado in cases in which drafts or cheques are protested, or if the Customer stops making his payments or if enforcement measures taken against the Customer are unsuccessful. It is not necessary that the above circumstances relate to business relationships between us and the Customer.
9.3.2
If it turns out that the Customer has made untrue statements in connection with his creditworthiness, and this information is of considerable significance for entering into a contract.
9.3.3
If the goods subject to the reservation of title of FOS® are sold by means of a transaction other than in a normal commercial transaction, in particular as a result of an assignment by bill of sale as a security or pledging. Exceptions to this shall only exist if FOS® has declared its consent to the sale in writing.
9.3.4
If, after a contract has been signed, circumstances significant for handing the contract which are beyond the sphere of control of FOS® have developed so that performance becomes impossible, or has been made unreasonably difficult, (e.g. the supplier fails to supply FOS® or is only able to supply FOS® subject to much more difficult conditions without this being the fault of FOS®).
9.3.5
If the Customer has committed a serious breach of his contractual obligations, in particular, if he is reproached with the charge of failing to observe his duty of care with regard to handling the goods supplied subject to the reservation of title.
9.3.6
Otherwise the right of withdrawal from the contract of FOS® and the Customer shall be determined by the statutory regulations.
10. Warranty
10.1
The period under warranty shall be 12 months beginning from risk passing over to the Customer. Within this period of time FOS® shall rectify justified defects notified by the Customer in writing. FOS® shall, as it chooses, remedy defects by rectifying the defect, circumventing the defect or by supplying a new product. The Customer shall be obliged to reimburse FOS® for that use and enjoyment of the defective thing to his benefit until a replacement is supplied. If FOS® offers the Customer fault-free but used goods, the Customer shall have the right to choose whether he wishes to have new goods and pay compensation for use and enjoyment of the replaced thing or accept used goods. In this case the obligation to pay compensation for the benefits of use and enjoyment shall not apply. If the cure is unsuccessful, the Customer may set FOS® a final period of time in writing of at least four weeks within which FOS® has to fulfil its obligations.
10.2
If a reasonable number of attempts to effect a cure is unsuccessful. At least two attempts for each defect however, the Customer shall, as he chooses, be entitled to reduce the price, withdraw from the contract or – if the preconditions have been satisfied – to demand compensation for damages instead of performance.
10.3
No other claims asserted by the Customer against FOS® shall be admitted. This shall apply in particular to compensation for damages not incurred by the subject-matter of the contract itself. This shall not apply, provided that FOS® is liable in cases of intent or gross negligence as well as for the lack of an assured feature.
10.4
The warranty for quality defects shall not cover defects arising as a result of faulty assembly or wear and tear. It shall, moreover, not apply to damages arising after the passing of risk as a result of faulty or negligent handling, excessive loads, unsuitable working materials and chemical, electro-chemical, electrical or atmospheric factors.
10.5
The warranty shall not apply with regard to those defects attributable to the subject-matter of the contract having been modified or extended by the Customer, unless the Customer is able to prove that such modifications or extensions were not responsible for the defect. If the defect reported by the Customer cannot be identified following an inspection, the Customer shall bear the costs of the inspection at cost incurred in line with the prices on the price list in force at that time.
10.6
The Customer is obliged to inspect the delivered goods immediately for manifest defects and to report identified defects immediately to FOS® in writing within 28 hours at the latest.
10.7
FOS® shall be liable for damages arising from the thing being defective only if this is attributable to a breach of duty which is at the least an instance of gross negligence by FOS®, its legal representatives or assistants. The Customer shall have to prove the reason for the damages and the value of them. The same shall apply for expenses incurred in vain by the Customer. The above restriction shall expressly not apply, provided that liability for damages incurred as a result of death, personal injury or physical harm is established as a result of a culpable breach of duty by FOS®, its legal representatives or assistants. Should FOS® have furnished a product warranty for a specific type of feature for the sold thing over a stipulated period of time, the above provisions governing inspection and notification of defects duties as well as the quantity or attempts to effect a cure shall not apply.
10.8
If there are defects, FOS® shall repair the subject-matter of the complaint either at its own offices or at the assembly site for which provision was made when the contract was signed, as it chooses. Additional costs incurred as a result of moving the thing to another location subsequently shall be borne by the Customer.
10.9
If claims arising from a breach of German proprietary rights by products supplied in accordance with these terms and conditions are asserted against the Customer, FOS® shall reimburse the Customer for all costs and sums paid by the Customer in compensation for damages as imposed upon him by the courts if FOS® is notified of such claims immediately in writing and if FOS® receives all necessary information from the Customer, the Customer satisfies the duty of participation incumbent upon him and FOS® may make the final decision as whether to mount a legal defence or to settle the claim. In the event that a court adjudicates that subsequent use of the subject-matter of the contract is in breach of German proprietary rights, or in the opinion of FOS® there is a risk of action being taken on the basis of a breach of a proprietary right, FOS® may, insofar as liability does exist, at its own expense and as it chooses, either procure the Customer the right to continue using the subject-matter of the contract, or replace it or modify it so that there is no longer a breach or take back the subject-matter of the contract and refund the Customer for the value of the subject-matter of the contract minus compensation for use for the benefits enjoyed up until then.
11. Contract for services / Special productions
11.1
As part of contracts for services, the Customer’s right of termination in accordance with Section 649 of the German Civil Code [BGB] is precluded. The Customer’s right to serve extraordinary notice of termination shall not be restricted.
If acceptance is necessary given the nature of the contract, the following shall apply:
11.2
FOS® shall notify the Customer by telephone, e-mail or in writing, as it chooses, that the contracted performance is ready for the acceptance test. The Customer shall be in default with acceptance if he does not subject the performance to an acceptance test within one week of the receipt of notification that the performance is ready for the acceptance test or receipt of an invoice from FOS®.
11.3
The Customer shall conduct the acceptance test immediately upon receipt of the notification that the performance is ready for the acceptance test and review compliance with the technical specifications. If the performance does comply with the technical specifications, the Customer shall confirm acceptance immediately in writing. If the Customer has not confirmed acceptance to FOS® within three weeks of being notified that the performance is ready for the acceptance test, and if, in the meantime, he has not reported any significant defects to FOS® either, the performance shall be regarded as having been accepted. Acceptance shall also be effected by the Customer making use of the performance without stating that utility has been significantly reduced.
12. Liability
12.1
Irrespective of the provisions governing the warranty as well as other special arrangements laid down in these provisions, the following shall apply in the event that a breach of duty has been committed by FOS®:
FOS® shall be liable to pay compensation for damages caused by its employees:
a) for unlimited damages in the event of death, personal injury or physical harm;
b) in accordance with the statutory regulations without limitation for damages caused by intent or gross negligence by the legal representatives of and senior staff of FOS® or as a result of serious organisational failures,
c) in cases other than those in a) damage shall be limited to those which are typical given the contractual use of the performance of FOS® and which were and are foreseeable;
d) for damages arising from a culpable breach of significant contractual duties,
e) for damages caused by junior assistants of FOS® through their gross negligence or intent without them having breached significant contractual duties;
f) insofar as there is a case of initial impossibility, and default extant;
The liability of FOS® for a lack of assured features on account of fraudulent intent or legal defects and under the German Product Liability Act shall not be affected by the above.
12.2
The liability of FOS® within the scope of the above Number, above all the liability for consequential damage, shall be limited to € 100,000.00 for each individual claim and to the sum of up to € 100,000.00 for pecuniary loss for each claim, limited to double the above sum for each year.
12.3
The Customer has to allow any contributory negligence on his part to be taken into account, e.g. failure to co-operate as necessary (e.g. this also includes submitting insufficient defect reports or committing organisational mistakes.
13. Sub-contracting
FOS® is also entitled to have the contractual performance carried out by sub-contractors. In this case FOS® shall still be responsible for the warranty.
14. Offsetting / Right of retention
The Customer shall not have a right to offset, unless it concerns an undisputed account or an adjudicated account. In the event that a defect is justified, a right of retention shall only be allowed to an appropriate and reasonable extent reflecting the nature of the defect and purchase price. The Customer may only withhold payments if the notified defect has been recognised by FOS®.
15. Prohibition of assignment
The Customer’s rights from the transactions entered into with FOS® cannot be transferred without the written consent of FOS®.
16. General
16.1
Should one or more of the above provisions be or become invalid, or contain a gap, the remaining provisions shall not be affected as a result thereof. In such a case the Parties to the contract shall be obliged to replace an invalid provision with that valid provision which comes closest to the economic objective of the invalid provision. This shall also apply for filling any unintended gaps there may be in need of being filled.
16.2
Agreements differing from the above provisions or additional provisions shall only be valid if they have been included in an additional written agreement to the contract entered into by the Parties. The elimination of the requirement for written form must also be made in writing.
16.3
The place of fulfilment for all obligations created by this contract shall be the headquarters of FOS®. The sole place of jurisdiction for all disputes arising from the contractual relationship as well as those concerning its validity shall, as FOS® chooses, shall be the courts having jurisdiction where FOS® is based or where the Customer is based, if the Customer is a registered business, legal entity under public law or a public law special fund or is based outside Germany.
16.4
This contractual relationship shall be governed by the law of the Federal Republic of Germany alone. The UN Vienna Convention on Contracts for the International Sale of Goods [CISG] shall not apply.
Hemer, September 2017
