General Terms & Conditions of Trade

issued by Franz Schneider Brakel GmbH + Co KG

1. Scope of Application / Changes to these GTCs

1.1
These General Terms & Con­di­tions of Trade (here­inafter re­ferred to as 
“GTCs”) apply to con­tracts entered into by our­selves, Franz Schnei­der Brakel GmbH + Co KG, for de­liv­er­ies and other ser­vices we perform for com­pa­nies as natural persons, legal en­ti­ties or part­ner­ships having legal ca­pac­ity within the meaning of Section 14 of Germany’s Civil Code acting in pursuit of their salaried or in­de­pen­dent oc­cu­pa­tions as well as for legal en­ti­ties and special assets under public law within the meaning of Section 310 (1) of Germany’s Civil Code (here­inafter re­ferred to as the “Or­der­ing Party” or “Cus­tomer”). These GTCs also apply to any future busi­ness re­la­tion­ships, even if no renewed ref­er­ence is made to our GTCs.

1.2
Any changes or ad­di­tions made or con­trac­tual pro­vi­sions laid down by the Cus­tomer that con­flict with or differ from these pro­vi­sions shall only be valid if we have ex­pressly con­sented to them in writing. If the Cus­tomer is not in agree­ment with this, then they are re­quired to inform us of same in writing without delay. The fol­low­ing GTCs shall also apply in the event of our un­con­di­tion­ally com­plet­ing an order for the Cus­tomer knowing that they have imposed con­flict­ing or dif­fer­ing pro­vi­sions and con­di­tions.

1.3
Pro­vided that the ma­te­r­ial pro­vi­sions of these GTCs are re­tained, we are en­ti­tled uni­lat­er­ally to change the pro­vi­sions of these GTCs. We are further en­ti­tled to revise the pro­vi­sions ap­plic­a­ble to the Cus­tomer insofar as re­quired legally or de facto by the rel­e­vant cir­cum­stances, for example in case of changes to statu­tory pro­vi­sions or rel­e­vant court rulings, or in case of nec­es­sary or ob­jec­tively sen­si­ble tech­ni­cal updates. Such changes made to these GTCs shall at the very least be no­ti­fied to the Cus­tomer by email. Should the Cus­tomer not object to such changes within six weeks of re­ceiv­ing no­ti­fi­ca­tion thereof, they shall be deemed agreed. We will draw the Cus­tomer’s at­ten­tion specif­i­cally to their right of ob­jec­tion and the legal con­se­quences of non-re­sponse when­ever changes are made to these GTCs. In the event of an ob­jec­tion being lodged in good time, the orig­i­nal pro­vi­sions shall remain in force un­al­tered.

2. Offers / Conclusion of Contract / Scope of Performance / Subcontractors

2.1
Our offers to the Cus­tomer are non-com­mit­tal. Il­lus­tra­tions, draw­ings, di­men­sions, weights and colour shades con­tained in cat­a­logues, price-lists and other printed matter or on our website con­sti­tute con­ven­tional ap­prox­i­ma­tions and serve to provide general product in­for­ma­tion in purely pic­to­r­ial form. They make no claim to being ex­haus­tive and correct. We shall not be liable for mis­prints or dis­crep­an­cies in colour and texture in the de­scrip­tions of prod­ucts pro­vided in printed ad­ver­tis­ing media. The tech­ni­cal data and de­scrip­tions fur­nished in the ap­plic­a­ble

2.2
The order placed by the Cus­tomer shall be deemed as con­sti­tut­ing a binding offer. At our own dis­cre­tion, we will accept the Cus­tomer’s order by either sending an ac­knowl­edg­ment of order within four weeks or un­con­di­tion­ally de­liv­er­ing the goods or per­form­ing the ser­vices ordered. The Cus­tomer is obliged to check that our ac­knowl­edg­ment of order is com­plete and correct rel­a­tive to the order placed. The Cus­tomer is to notify us of any dis­crep­an­cies forth­with. Verbal col­lat­eral agree­ments shall only be binding if we have ac­knowl­edged them in at least text form (email).

2.3
We reserve the right to make tech­ni­cally req­ui­site changes in the man­u­fac­tur­ing process. This applies in par­tic­u­lar to prod­ucts cus­tom-made for or­der­ing parties.

2.4
Where we issue rec­om­men­da­tions re­gard­ing the use of our goods, we shall do so to the best of our knowl­edge. Given the wide range of pos­si­ble uses, dif­fer­ing re­quire­ments and spe­cific con­di­tions of use, however, we can assume no li­a­bil­ity for the suit­abil­ity of a product for any one pos­si­ble use unless we have ex­plic­itly war­ranted such suit­abil­ity in at least text form. The Cus­tomer is in all cases obliged to verify the product’s suit­abil­ity for its in­tended use for them­selves as well as to ensure by con­sult­ing with, for in­stance, ar­chi­tects and trades­peo­ple, or by com­mis­sion­ing same, that any build­ing and safety reg­u­la­tions are com­plied with.

2.5
Sales based on spec­i­mens or samples shall merely guar­an­tee suit­able sample con­for­mity and shall not con­sti­tute a guar­an­tee within the meaning of Section 276 (1) of Germany’s Civil Code or, re­spec­tively, any guar­an­tee of the nature or dura­bil­ity of the prod­ucts we are to deliver within the meaning of Section 443 of Germany’s Civil Code. Fur­ther­more, we shall only assume any pro­cure­ment risk given a side-agree­ment in writing reading “FSB assumes the pro­cure­ment risk for …”. Hence, our having pledged to deliver any unascer­tained thing of a given type shall not, on its own, entail our having either assumed a pro­cure­ment risk or fur­nished a na­ture-of-goods guar­an­tee.

2.6
We are en­ti­tled to com­mis­sion sub­con­trac­tors when per­form­ing con­trac­tu­ally agreed ser­vices. Em­ploy­ing sub­con­trac­tors shall not, however, in any way detract from our alone being obliged to fulfil the terms of the con­tract with the Cus­tomer in their en­tirety.

3. Provision of Documents / Customer’s Duty of Involvement / Acceptance

3.1
The Or­der­ing Party is re­spon­si­ble for the cor­rect­ness of any doc­u­ments pro­vided for the purpose of ful­fill­ing a con­tract such as, notably, draw­ings, bills of quan­ti­ties, door plans, locking plan spec­i­fi­ca­tions and spec­i­mens.

3.2
The Or­der­ing Party shall ensure that we obtain the rights re­quired to use the ma­te­r­ial re­ferred to in Sub­clause 3.1 above. To this end, they shall vouch for the fact that they have the req­ui­site rights to the ma­te­r­ial as­signed to us. Where the Or­der­ing Party does not enjoy the req­ui­site rights to use doc­u­ments as­signed to us, they shall notify us of this upon handing them over. In the event of copy­right being in­fringed through use of the ma­te­r­ial en­trusted to us, the Or­der­ing Party shall in­dem­nify us against all third-party claims.

3.3
The Or­der­ing Party is obliged to notify us of any changes to their company name, domi­cile, pro­pri­etor status or fi­nan­cial stand­ing without delay - in at least text form where at all pos­si­ble.

3.4
Any faults arising are to be doc­u­mented by au­tho­rised members of the Or­der­ing Party’s staff in text form - ret­ro­spec­tively in the event of a matter ini­tially being re­ported by tele­phone - to the best of their ability and in as clear a manner as pos­si­ble citing the cir­cum­stances sur­round­ing how the faults came about, their con­se­quences and their pos­si­ble causes and to notify us as soon as the faults are de­tected, to the extent that the Or­der­ing Party is in a po­si­tion to provide in­for­ma­tion on this.

3.5
Where ac­tiv­i­ties due and owing from us are to be ac­cepted, the Or­der­ing Party is re­quired to declare its ac­cep­tance to us in writing without delay as soon as said ac­tiv­i­ties due and owing from us have been es­sen­tially per­formed or we request that they be taken de­liv­ery of. Ac­cep­tance can be refused in the event of there being serious short­com­ings. Any short­com­ings dis­cov­ered are to be reme­died by our­selves without cul­pa­ble delay. Ac­cep­tance is deemed to have oc­curred if the Or­der­ing Party does not specify the reasons for re­fus­ing ac­cep­tance in writing within seven days of the service es­sen­tially having been per­formed or our request for ac­cep­tance having been sub­mit­ted. Ac­cep­tance is like­wise deemed to have oc­curred once the Or­der­ing Party has begun avail­ing itself of the ser­vices we have per­formed by, for in­stance, making pro­duc­tive use of same.

3.6
Or­der­ing Parties active as re­tail­ers are obliged to check the content of orders placed by their own end-cus­tomers (parties to con­tracts with them) even in the event of the advice given to said end-cus­tomers having come from us.

4. Prices / Terms of Payment / Arrears / Rights of Set-Off and Retention

4.1
The prices agreed upon con­clu­sion of a con­tract (re­im­burse­ments), as cited on the order note or in the ac­knowl­edg­ment of order, shall be deemed to apply. Where no price has been ex­pressly spec­i­fied, the prices ap­plic­a­ble at the time of con­clu­sion of con­tract as per our price-list shall be deemed to apply. These prices are to be sup­ple­mented by value-added tax at the rate in force on the day of de­liv­ery, the cost of the packing re­quired for proper ship­ment, the cost of car­riage from our factory or ware­house, cartage charges and - where agreed - ship­ping in­sur­ance. Other kinds of na­tion­ally spe­cific dues may also be in­cluded in the prices agreed in the case of de­liv­er­ies abroad. The cost of set­ting-up, in­stal­la­tion, as­sem­bly etc. must like­wise be charged for sep­a­rately.

4.2
We reserve the right to adapt our prices to a rea­son­able degree fol­low­ing con­clu­sion of con­tract and prior to in­voic­ing if ex­ter­nal costs are either reduced or in­creased sub­se­quent to the con­tract being con­cluded, notably as a result of wage set­tle­ments and changes in the market prices of con­trac­tu­ally agreed ma­te­ri­als, that impact on the overall cost of the goods. If so re­quested, we will furnish the Cus­tomer with ev­i­dence of any changes by ex­plain­ing the various cost com­po­nents in­volved and their impact on the total price.

4.3
Unless stated oth­er­wise in our ac­knowl­edg­ment of order, re­im­burse­ment is to be ef­fected in full within 30 days of the invoice date. Statu­tory pro­vi­sions apply with regard to any arrears ac­cru­ing. Prompt-pay­ment dis­counts must be specif­i­cally agreed in writing.

4.4
Should there be a marked de­te­ri­o­ra­tion in the Cus­tomer’s fi­nan­cial cir­cum­stances sub­se­quent to a con­tract being con­cluded or should such a state become evident once the con­tract has been con­cluded - due to the Cus­tomer dis­con­tin­u­ing pay­ments, for in­stance, or ap­ply­ing to ini­ti­ate in­sol­vency pro­ceed­ings in respect of their assets -, then we shall be en­ti­tled to demand either advance payment of the amount agreed or col­lat­eral se­cu­rity.

4.5
The Cus­tomer enjoys the right of set-off as­sum­ing its coun­ter­claims have been finally and con­clu­sively es­tab­lished, are not a matter of dispute or have been recog­nised by our­selves. Any cross-claims of the Cus­tomer’s de­riv­ing from the same con­trac­tual re­la­tion­ship shall like­wise not be subject to the con­trac­tual ex­clu­sion of set-off. The Cus­tomer may only ex­er­cise any right of re­ten­tion if the cross-claim on which it bases that right relates to the same con­trac­tual re­la­tion­ship and is un­con­tested, has been finally and con­clu­sively es­tab­lished or is ripe for judg­ment.

4.6
Should the Cus­tomer be in arrears on the re­im­burse­ment agreed for any service forming the subject of a con­tract, we shall be en­ti­tled to levy in­ter­est at a rate nine per­cent­age points above the base rate. This shall be without prej­u­dice to our as­sert­ing further claims in respect of any default in payment, notably for com­pen­sa­tion, higher rates of in­ter­est and mis­cel­la­neous ad­di­tional costs. We shall be en­ti­tled to pass on to the Cus­tomer any bank charges we incur due to account details being in­cor­rect or un­jus­ti­fi­ably re­jected unless the Cus­tomer is not ac­count­able for the in­cor­rect data fur­nished. The Cus­tomer shall be en­ti­tled to seek to demon­strate that little or no damage has been done to us.

5. Delivery Dates and Periods / Statutory Delay in Performance

5.1
De­liv­ery dates and periods shall only be binding where a trans­ac­tion at a fixed date has been ex­pressly agreed in writing. De­liv­ery periods shall begin on the day order con­fir­ma­tion is dis­patched. In the case of elec­tronic prod­ucts, the de­liv­ery period agreed shall not begin until there has been clar­i­fi­ca­tion of the tech­ni­cal re­quire­ments for the in­di­vid­ual items in the order in ac­cor­dance with our or­der­ing spec­i­fi­ca­tions. Amend­ments to a job agreed sub­se­quently shall cause the de­liv­ery period or date to be put back ac­cord­ingly. Should agreed de­liv­ery dead­lines be ex­ceeded for reasons for which we are ac­count­able, however, the Or­der­ing Party may re­pu­di­ate the con­tract once a rea­son­able period of grace of at least three weeks has expired to no avail as­sum­ing it was stated when the period of grace was set that the Or­der­ing Party is en­ti­tled to proceed in this manner. The con­tract must be re­pu­di­ated in writing.

5.2
We shall only be deemed to be in delay once a rea­son­able period of grace set by the Or­der­ing Party has elapsed. The terms of Sub­clause 17.4 shall apply in the event of force majeure arising.

5.3
Our li­a­bil­ity for damages for any delay shall be limited in ac­cor­dance with the terms of Clause 5.

5.4
We are en­ti­tled to effect partial de­liv­ery and per­for­mance within the dead­lines for de­liv­ery and per­for­mance agreed as long as the part ship­ment can be made use of by the Cus­tomer for the purpose con­trac­tu­ally spec­i­fied, de­liv­ery of the re­main­ing prod­ucts ordered is assured, and this does not cause the Cus­tomer con­sid­er­able extra input or ad­di­tional costs as­sum­ing, that is, that we do not state a will­ing­ness to take these on our­selves.

5.5
Should the Or­der­ing Party be in default in ac­cep­tance or be in cul­pa­ble breach of any other duties to co­op­er­ate, we shall be en­ti­tled to demand that any damage in­curred, in­clu­sive of any ad­di­tional ex­pen­di­ture, be made good. We reserve the right to lodge more far-reach­ing claims.

6. Passing of Risk / Shipping and Packing Costs

6.1
Goods will be de­liv­ered ex works or ware­house and are to be col­lected by the Or­der­ing Party at its own risk and cost. The risk of de­te­ri­o­ra­tion or ac­ci­den­tal loss shall pass to the Or­der­ing Party upon its re­ceiv­ing no­ti­fi­ca­tion of the goods being made avail­able, specif­i­cally upon their being col­lected by the haulage con­trac­tor. This also applies in the event of de­liv­ery being agreed car­riage-paid or of our having taken out ap­pro­pri­ate ship­ping in­sur­ance, unless the goods are de­liv­ered in our own ve­hi­cles.

6.2
The choice of ship­ping route and packing shall be made by our­selves unless any­thing else is specif­i­cally agreed in at least text form.

6.3
Com­plete con­sign­ments of goods having a minimum net value of €1,000 (ex­clud­ing value-added tax) shall be de­liv­ered at place within the Eu­ro­pean Union. Direct ship­ping to a cus­tomer address of the Or­der­ing Party shall be charge­able to same. De­liv­er­ies beyond the borders of the Eu­ro­pean Union and express con­sign­ments are to be agreed in­di­vid­u­ally.

6.4
Cargo pack­ag­ing and all other pack­ag­ing can be re­turned to us at no cost in ac­cor­dance with the statu­tory pro­vi­sions.

7. Rights of the Ordering Party in the Event of Defects (Fault Rectification)

7.1
A ma­te­r­ial defect obtains if the goods are not in the con­di­tion con­trac­tu­ally agreed or are un­suit­able for use in the manner con­trac­tu­ally agreed. A legal im­per­fec­tion in title obtains if it has not been pos­si­ble to ac­tively grant the Or­der­ing Party the rights re­quired for con­trac­tual util­i­sa­tion of the goods in Europe.

7.2
Where the Or­der­ing Party orders goods as a com­mer­cial un­der­tak­ing, it is obliged to examine them without delay upon receipt thereof, ex­er­cis­ing a degree of pru­dence com­men­su­rate with the cir­cum­stances. The Or­der­ing Party is to notify us in writing of any readily dis­cernible ma­te­r­ial defects, wrong goods de­liv­ered or con­trac­tu­ally de­fec­tive vari­ances in quan­tity without delay, and no later than a fort­night after having re­ceived the goods, citing the de­liv­ery-note date and the job number. Hidden ma­te­r­ial defects are to be re­ported to us in writing within 8 days of their being dis­cov­ered. The Or­der­ing Party has the duty, by trial fab­ri­ca­tion if nec­es­sary, to check whether the goods de­liv­ered are free of defects and suit­able for the en­vis­aged purpose. In the event of a defect not being no­ti­fied to us in good time or in the proper manner as laid down in Sub­clause 7.2. (1 or 3), the Or­der­ing Party shall forfeit its rights to claim unless, that is, we have with­held in­for­ma­tion about the defect with intent to deceive.

7.3
In the event of goods sup­plied by our­selves being ma­te­ri­ally de­fec­tive, we shall only be obliged to either perform re­me­dial work or deliver non-de­fec­tive goods (post-per­for­mance), the choice being ours. We shall be per­mit­ted to make such post-per­for­mance de­pen­dent upon payment of 50 % of the agreed pur­chase price or re­mu­ner­a­tion, or else a share deemed rea­son­able given the nature of the defect. Should we not be willing or in a po­si­tion to effect post-per­for­mance, notably if we should allow a rea­son­able period set, in con­junc­tion with which it was stated that the Or­der­ing Party may re­pu­di­ate the con­tract once that period has passed to no avail, to elapse for reasons we are to answer for, or if post-per­for­mance is un­suc­cess­ful in some other way, the Or­der­ing Party shall be en­ti­tled, as it sees fit, to demand a re­duc­tion in re­im­burse­ment or, where the ma­te­r­ial defects are con­sid­er­able, to re­pu­di­ate the con­tract. Any re­me­dial work shall be deemed to have failed fol­low­ing the third attempt should nothing to the con­trary be in­di­cated by the nature of the thing or other cir­cum­stances. Should a con­tract for ser­vices be in place, then the Cus­tomer shall ad­di­tion­ally have the right to rectify the fault itself and demand com­pen­sa­tion for the req­ui­site outlay. Where the Or­der­ing Party has suf­fered damage or futile outlay due to ma­te­r­ial defects in goods de­liv­ered by our­selves, our li­a­bil­ity for same is set out in Clauses 8 and 9.

7.4
The rights set out in Sub­clause 7.3 shall not obtain with regard to ma­te­r­ial defects de­riv­ing from doc­u­ments sub­mit­ted by the Or­der­ing Party (draw­ings, samples etc.). This applies in par­tic­u­lar also to the func­tion­ing of prod­ucts man­u­fac­tured to a design by the Or­der­ing Party or to design data sub­mit­ted by same.

7.5
Should the Or­der­ing Party or any third party com­mis­sioned by same in­ter­vene to modify the prod­ucts sup­plied without our prior written consent, we shall nev­er­the­less remedy the defect if the Or­der­ing Party proves that the in­ter­ven­tion was not the cause of the defect having come about.

7.6
Our duty to remedy defects shall not cover stan­dard wear and tear or defects arising sub­se­quent to de­liv­ery, as a result, for in­stance, of ex­ter­nal in­flu­ences or op­er­at­ing errors. The same also applies as regards either im­proper use of prod­ucts by the Or­der­ing Party or faulty work per­formed by any fab­ri­ca­tor di­rectly or in­di­rectly com­mis­sioned by same.

7.7
Where a Cus­tomer sup­plies ma­te­r­ial for prod­ucts to be man­u­fac­tured by our­selves, we shall not accept li­a­bil­ity for defects arising from the ma­te­r­ial sup­plied.

7.8
In the event of our pro­duc­ing a finish on behalf of a third party for prod­ucts to be dis­trib­uted by same, we shall not guar­an­tee that the level of pro­tec­tion af­forded by the finish will remain un­changed if the prod­ucts are fitted into other prod­ucts or else come into contact or are ad­joined with other ma­te­ri­als.

7.9
No claims may be lodged by the Or­der­ing Party for ad­di­tional outlay ne­ces­si­tated by post-per­for­mance such as, notably, the costs of car­riage, in­fra­struc­ture, ma­te­r­ial and labour due to the goods having been moved to another lo­ca­tion sub­se­quent to their being de­liv­ered by our­selves unless this accords with the pre­scribed end use of the goods.

7.10
Post-per­for­mance to rectify legal im­per­fec­tions in title shall take the form of our es­tab­lish­ing a pos­si­ble use that is legally flaw­less. To this end, we shall be per­mit­ted to replace the con­trac­tual item con­cerned with an equiv­a­lent one that is con­trac­tu­ally com­pli­ant should this be ac­cept­able to the Or­der­ing Party. Should any third party assert in­dus­trial prop­erty rights towards the Or­der­ing Party, we are to be no­ti­fied of this in writing without delay. Should we be an­swer­able for the in­fringe­ment of rights, we shall either dispute or satisfy the claims at our own expense and in liaison with the Or­der­ing Party as we see fit, and shall in­dem­nify the latter against any rea­son­able costs and damage in­volved in dis­put­ing the claim. The Or­der­ing Party may not endorse third-party claims of its own accord.

7.11
Should it tran­spire that a defect re­ported by the Or­der­ing Party does not ac­tu­ally exist, then we shall be en­ti­tled to charge the Or­der­ing Party as per our current price-list for the outlay in­volved in analysing the sit­u­a­tion and for any further pro­cess­ing input re­quired should the Or­der­ing Party be cul­pa­ble of wrong­ful intent or gross neg­li­gence in re­port­ing the defect.

7.11
Where malice is in­volved and where we have agreed to honour a guar­an­tee, this shall in no way affect the statu­tory pro­vi­sions gov­ern­ing ma­te­r­ial defects or legal im­per­fec­tion in title. In the event of any third-party makers’ guar­an­tees being in place, claims issuing from such a guar­an­tee are to be di­rectly as­serted towards the guar­an­tor unless we have been au­tho­rised by same to receive de­c­la­ra­tions under the terms of the guar­an­tee.

8. Liability

8.1
We shall be liable to com­pen­sa­tion for damage or futile ex­pen­di­ture for what­ever legal reason (e.g. dere­lic­tion of duty, unau­tho­rised action) as set out below:

8.1.1
without upward limit in the event of wrong­ful intent or gross neg­li­gence;

8.1.2
for or­di­nary neg­li­gence in the event of a car­di­nal con­trac­tual oblig­a­tion being vi­o­lated. Car­di­nal con­trac­tual oblig­a­tions are deemed to be oblig­a­tions put in place so as to protect key legal po­si­tions of the Cus­tomer’s that the con­tract’s purpose and content are in­her­ently de­signed to uphold, or whose ful­fil­ment is es­sen­tial to im­ple­men­ta­tion of, the con­tract and upon which the Cus­tomer can jus­ti­fi­ably rely. Li­a­bil­ity in any one such in­stance of damage shall be con­fined to typical con­trac­tual damage fore­see­able when the con­tract was con­cluded or to a maximum of double the net re­im­burse­ment in the case of work on goods or a service being pur­chased or per­formed. For the rest, no li­a­bil­ity shall be en­ter­tained for damage caused as a result of or­di­nary neg­li­gence, loss of earn­ings, greater staff costs in­curred by the Cus­tomer, loss of use and/or short­falls in turnover. Nothing in the above shall affect the pro­vi­sions of Sub­clause 8.2 below.

8.1.3
We shall be liable for de­lay-re­lated damage, as­sum­ing or­di­nary neg­li­gence is in­volved, to a level of up to 5 % of the con­trac­tual re­im­burse­ment.

8.2
Li­a­bil­ity is gov­erned by the rel­e­vant statu­tory pro­vi­sions where it con­cerns as­sump­tion of a pro­cure­ment or man­u­fac­tur­ing risk within the meaning of Section 276 of Germany’s Civil Code, the failure to assume a na­ture-of-goods or ser­vice-life guar­an­tee pur­suant to Section 443 of Germany’s Civil Code, malice, risks to life, body or health or the terms of Germany’s Product Li­a­bil­ity Act.

8.3
The above li­a­bil­ity regime also applies in respect of our legal rep­re­sen­ta­tives, em­ploy­ees and vic­ar­i­ous agents.

8.4
The Cus­tomer is obliged to advise us in writing of any damage within the meaning of the above li­a­bil­ity regime without delay or else to arrange for said damage to be doc­u­mented by our­selves in order that we are in­formed at the ear­li­est pos­si­ble op­por­tu­nity and may pos­si­bly be able to act to min­imise the damage to­gether with the Cus­tomer who has suf­fered same.

9. Time Limitation

9.1
The period of lim­i­ta­tion for claims to remedy defects or legal im­per­fec­tions in title and any claims for com­pen­sa­tion shall amount to two years from de­liv­ery/ac­cep­tance of the product subject to the pro­vi­sions of Sub­clause 9.2.

9.2
Over and above the statu­tory war­ranty against defects, we guar­an­tee the proper func­tion­ing of our me­chan­i­cal prod­ucts for five years as­sum­ing the hard­ware has been fitted in a work­man­like manner and prop­erly used; this shall not apply in the case of elec­tronic and mecha­tronic prod­ucts. In the case of con­struc­tion ser­vices or the supply of build­ing ma­te­ri­als and where there is a de­fi­ciency in title in a third party’s right in rem that enables re­cov­ery of pos­ses­sion of the subject of the con­tract to be claimed, the statu­tory periods of lim­i­ta­tion apply.

9.3
With regard to any other claims as­serted by the Cus­tomer on the basis of a con­tract or re­la­tion­ship under the law of oblig­a­tions (Section 311 2 of Germany’s Civil Code), a period of lim­i­ta­tion of one year from the statu­tory com­mence­ment of the period of lim­i­ta­tion shall apply. Claims shall lapse fol­low­ing the passing of the maximum statu­tory time limits at the latest (Section 199 3 and 4 of Germany’s Civil Code).

9.4
Statu­tory periods of lim­i­ta­tion shall apply in the cases of per­sonal injury, malice, actions in­volv­ing wrong­ful intent or gross neg­li­gence, as­sump­tion of a na­ture-of-goods or ser­vice-life guar­an­tee pur­suant to Section 443 of Germany’s Civil Code and the terms of Germany’s Product Li­a­bil­ity Act.

10. Rights to Permanently Relinquished Software

10.1
Where the de­liv­ery of per­ma­nently re­lin­quished soft­ware is the subject of a con­tract or part of the service per­formable, we shall, once the com­plete pur­chase price has been paid, grant the Or­der­ing Party a per­ma­nent, non-trans­fer­able or­di­nary right of con­trac­tu­ally com­pli­ant use in the object code subject to the pro­vi­sions con­tained in Sub­clauses 10.3 to 10.6. Until such time as com­plete payment of the licence pur­chase price quoted has been made, we will grant the Or­der­ing Party an or­di­nary trans­fer­able right to use the soft­ware that shall be revoked upon payment being delayed by more than 30 days.

10.2
Hard-copy ap­pli­ca­tions lit­er­a­ture avail­able either in ab­bre­vi­ated form or via the soft­ware’s Help func­tion shall be an in­te­gral part of the con­tract. We will grant the Cus­tomer the right to use this pur­suant to Sub­clause 10.1.

10.3
The Or­der­ing Party is not per­mit­ted to make copies of whole or part of the soft­ware - except for backup and archiv­ing pur­poses - without our prior written consent. Backup copies must, to the extent tech­ni­cally fea­si­ble, display the same copy­right notice con­tained on the orig­i­nal data carrier and be safely stored. Copy­right notices must not be deleted, altered or sup­pressed. Copies no longer re­quired are to be deleted or de­stroyed. The user’s manual and any other doc­u­ments re­ceived from us may only be copied for in-house pur­poses.

10.4
It is per­mis­si­ble under the terms of Section 69 (e) of Germany’s Copy­right Act to de­com­pile soft­ware. If the Or­der­ing Party is unable or un­will­ing to carry out any ex­cep­tion action per­mit­ted under this Act itself or to have this done by its own staff, then it is re­quired, prior to placing the job with any third-party company, to give us an op­por­tu­nity to perform the desired tasks of bring­ing about in­ter­op­er­abil­ity on its behalf within a rea­son­able time limit and for a rea­son­able charge. The Or­der­ing Party is re­quired to pledge to secrecy any third-party com­pa­nies with whom jobs are placed.

10.5
Subject to the pro­vi­sions of Sub­clause 11.6, the Or­der­ing Party is en­ti­tled to per­ma­nently dispose of soft­ware re­ceived from us to third parties, in­clu­sive of any ac­com­pa­ny­ing ma­te­r­ial, as­sum­ing the ac­quir­ing pur­chaser con­sents to the ex­ist­ing terms of use con­tin­u­ing to apply to them­selves. In the event of such a trans­fer, the Or­der­ing Party is re­quired to pass on all program copies in­clu­sive of any backup copies made or else to destroy any copies not passed on. The act of trans­fer shall cause the Or­der­ing Party’s right to use the soft­ware to be revoked. The Or­der­ing Party is re­quired to notify us of the name and full address of the pur­chaser in writing.

10.6
The Or­der­ing Party shall not be per­mit­ted to per­ma­nently re­lin­quish soft­ware to any third party whose place of busi­ness is not on the ter­ri­tory of the Eu­ro­pean Union or of any other sig­na­tory State to the Treaty on the Eu­ro­pean Eco­nomic Area, nor to any third party with whom we are in com­pe­ti­tion. Neither shall the Or­der­ing Party be au­tho­rised to per­ma­nently re­lin­quish a partial quan­tity of any spec­i­fied number of soft­ware li­cences ob­tained to third parties.

10.7
Re­mov­ing copy pro­tec­tion or similar pro­tec­tion rou­tines shall be ad­mis­si­ble in cases where the pro­tec­tion mech­a­nism impairs or pre­vents trou­ble-free use of the program.

10.8
Copy­right notices, serial numbers and any other fea­tures serving to iden­tify the program must not be removed or altered.

11. Securing Reservation of Title

11.1
The goods sup­plied (here­inafter also re­ferred to as “re­served-ti­tle goods”) shall remain our prop­erty until the pur­chase-money claim (re­im­burse­ment) and all other ex­ist­ing or future claims arising from our busi­ness re­la­tion­ship with the Or­der­ing Party have been settled in full. The in­clu­sion of a pur­chase-money claim towards the Or­der­ing Party in an account current and ac­cep­tance of the state­ment of account shall in no way affect said reser­va­tion of title.

11.2
The Or­der­ing Party is obliged to treat re­served-ti­tle goods with care; it is in par­tic­u­lar obliged to ad­e­quately insure them to their full value as new against loss, damage and de­struc­tion through the effects, for in­stance, of fire, water and theft to its own account. The Or­der­ing Party shall assign its claims from such in­sur­ance con­tracts to our­selves with im­me­di­ate effect. We here­with accept this as­sign­ment.

11.3
The Or­der­ing Party may neither pledge nor trans­fer by way of se­cu­rity re­served-ti­tle goods owned by our­selves. It is, however, en­ti­tled pur­suant to the fol­low­ing pro­vi­sions to resell any re­served-ti­tle goods de­liv­ered in the or­di­nary course of busi­ness. The afore­men­tioned en­ti­tle­ment shall not obtain should the Or­der­ing Party have as­signed or pledged the claim issuing out of the re­selling of the goods towards its own cus­tomer - in each case op­er­a­tive - to a third party or have entered into a covenant of non-as­sign­ment with same be­fore­hand.

11.4
The Or­der­ing Party shall, with im­me­di­ate effect, assign to our­selves all ac­counts re­ceiv­able from any resale of goods we deliver - in­clud­ing any arising in future and of a con­di­tional nature - with all sub­sidiary rights to the value of the re­served-ti­tle goods de­liv­ered, ac­cord­ing them prece­dence over its re­main­ing ac­counts re­ceiv­able, so as to ensure all our claims cited in Sub­clause 11.1 are met. We here­with accept this as­sign­ment.

11.5
As long as and to the extent that the Or­der­ing Party honours its fi­nan­cial oblig­a­tions towards our­selves, it is em­pow­ered to redeem ac­counts re­ceiv­able as­signed to our­selves from its own cus­tomers in the or­di­nary course of busi­ness. It is not, however, en­ti­tled to enter into an open account re­la­tion­ship or covenant of non-as­sign­ment in respect of these ac­counts re­ceiv­able with its own cus­tomers or to assign or pledge them to third parties. If an open account re­la­tion­ship nev­er­the­less exists between the Or­der­ing Party and the pur­chasers of our re­served-ti­tle goods despite the pre­ced­ing sen­tence, the account re­ceiv­able as­signed be­fore­hand shall relate to the ac­cepted state­ment of account and, in the event of the pur­chaser’s in­sol­vency, to the account then ob­tain­ing too.

11.6
If we so demand, the Or­der­ing Party is to provide ev­i­dence of the ac­counts re­ceiv­able it has as­signed to our­selves in­di­vid­u­ally and to notify its debtors of as­sign­ment having been ef­fected de­mand­ing that they pay us a sum equiv­a­lent to the amount of our claims towards the Or­der­ing Party. We are en­ti­tled to ad­di­tion­ally inform the Or­der­ing Party’s debtors of the as­sign­ment our­selves and to redeem the ac­counts re­ceiv­able. We will, however, refrain from ex­er­cis­ing these powers as long as the Or­der­ing Party duly and promptly honours its fi­nan­cial oblig­a­tions, no ap­pli­ca­tion has been made to ini­ti­ate in­sol­vency pro­ceed­ings against the Or­der­ing Party and the Or­der­ing Party does not suspend its pay­ments. Should one of the above occur, however, then we shall be per­mit­ted to demand that the Or­der­ing Party provide us with details of the ac­counts re­ceiv­able as­signed and by whom they are owed, furnish all in­for­ma­tion re­quired for the re­demp­tion of ac­counts re­ceiv­able and sur­ren­der the rel­e­vant doc­u­ments.

11.7
The Or­der­ing Party is re­quired to notify us in writing of any levies of ex­e­cu­tion or other forms of in­ter­fer­ence by third parties without delay so as to enable us to bring an action under Section 771 of Germany’s Code of Civil Pro­ce­dure (ZPO).

11.8
Any further ma­chin­ing and pro­cess­ing or con­ver­sion by the Or­der­ing Party of goods de­liv­ered by our­selves with reser­va­tion of title shall in all cases be per­formed on our behalf without this causing us to accrue li­a­bil­i­ties. Where goods de­liv­ered with reser­va­tion of title are further processed to­gether with other objects not be­long­ing to us, we shall acquire co-own­er­ship of the new object in the ratio of the value of the re­served-ti­tle goods de­liv­ered by our­selves (final invoice amount in­clu­sive of value-added tax) to that of the other objects further processed at the time the further pro­cess­ing is per­formed. The same applies to the object arising from further pro­cess­ing as to the object of sale de­liv­ered with reser­va­tion. In the event of the goods de­liv­ered by our­selves with reser­va­tion of title be­com­ing in­sep­a­ra­bly ad­joined with other objects not be­long­ing to us, we shall acquire co-own­er­ship of the new object in the ratio of the value of the re­served-ti­tle goods de­liv­ered by our­selves (final invoice amount in­clu­sive of value-added tax) to the other objects com­min­gled or ad­joined at the time of com­min­gling or ad­junc­tion. If the Or­der­ing Party’s object is to be re­garded as the prin­ci­pal thing fol­low­ing the act of com­min­gling or ad­junc­tion, then there shall be agree­ment between the Or­der­ing Party and our­selves to the effect that the Or­der­ing Party shall pro­por­tion­ately trans­fer co-own­er­ship of said object to us. The Or­der­ing Party shall hold any sole or partial own­er­ship of the object in safe custody on our behalf. The Or­der­ing Party is en­ti­tled to dispose over any new prod­ucts created through ma­chin­ing, pro­cess­ing, con­ver­sion, com­min­gling or ad­junc­tion in the or­di­nary course of busi­ness as­sum­ing it punc­tu­ally honours the oblig­a­tions de­riv­ing from its busi­ness re­la­tion­ship with our­selves. Under no cir­cum­stances, however, is the Or­der­ing Party em­pow­ered to resell or in any other way turn these new prod­ucts to account having entered into a covenant of non-as­sign­ment with its cus­tomers, neither shall it pledge them or trans­fer own­er­ship of them by way of se­cu­rity. The Or­der­ing Party shall assign any ac­counts re­ceiv­able from the sale of such new prod­ucts to which we enjoy rights of own­er­ship to our­selves with im­me­di­ate effect as col­lat­eral to an extent com­men­su­rate with our share of own­er­ship of the goods sold. If the Or­der­ing Party adjoins or com­min­gles the re­served-ti­tle goods de­liv­ered with a prin­ci­pal thing, it shall assign its claims towards the third party to our­selves with im­me­di­ate effect up to the value of our re­served-ti­tle goods. We here­with accept these as­sign­ments.

11.9
The Or­der­ing Party shall assign to our­selves ac­counts re­ceiv­able from a third party that accrue from our re­served-ti­tle goods being linked with a prop­erty up to the value of our re­served-ti­tle goods as se­cu­rity for our own ac­counts re­ceiv­able.

11.10
We shall pledge, should the Or­der­ing Party so demand, to release any se­cu­ri­ties to which we are el­i­gi­ble once the value that can be re­alised from said se­cu­ri­ties to which we are el­i­gi­ble exceeds the claims secured by more than 10 %. Which se­cu­ri­ties are to be re­leased shall be a matter for our own dis­cre­tion.

11.11
Given breaches of con­tract by the Or­der­ing Party, notably arrears ex­ceed­ing 10 % of the invoice amount over a not in­con­sid­er­able period of time, we shall - without prej­u­dice to any other claims (for damages) open to us - be en­ti­tled to re­pu­di­ate the con­tract and demand that the re­served-ti­tle goods de­liv­ered by our­selves be re­turned. We shall be au­tho­rised to turn re­served-ti­tle goods de­liv­ered by our­selves to account once they have been re­turned. The pro­ceeds from such ex­ploita­tion are to be offset against the Or­der­ing Party’s li­a­bil­i­ties towards us - less an ap­pro­pri­ate amount for the costs of ex­ploita­tion.

12. Tooling Costs

Where it is nec­es­sary to produce new tools for goods com­mis­sioned and a sep­a­rate agree­ment has been con­cluded for this purpose, we will charge the agreed pro­por­tions of our man­u­fac­tur­ing costs. The Or­der­ing Party shall not acquire any rights to the tools them­selves by paying any such part-costs. These shall, instead, remain our prop­erty. Tools are to be paid for in full upon pre­sen­ta­tion of the outturn sample. We pledge to retain the tools on the Or­der­ing Party’s behalf for 1 (one) year fol­low­ing final de­liv­ery and to accord it sole right of use. Should the Or­der­ing Party notify us prior to this period elaps­ing that further orders are to be placed within a further year, then the re­ten­tion period shall be ex­tended by a further year. Fol­low­ing this period and as­sum­ing no sub­se­quent orders are placed, we alone shall be per­mit­ted to dispose over the tools.

13. Covenant of Non-Assignment

The Or­der­ing Party may not trans­fer its rights or claims towards our­selves, in par­tic­u­lar owing to defects in the goods we deliver or to any breaches of duty we per­pe­trate, either in whole or part to third parties or pledge them to third parties without our ex­pressly con­sent­ing to this in writing; nothing in the above shall affect the pro­vi­sions of Section 354 (a) of Germany’s Com­mer­cial Code.

14. Data Privacy

We will observe all the rel­e­vant pro­vi­sions of data privacy leg­is­la­tion in the course of com­ple­tion of con­tract – notably as en­shrined in the EU’s General Data Pro­tec­tion Reg­u­la­tion (GDPR) and Germany's Data Pro­tec­tion Act. Details re­gard­ing how data are processed and the rights of those af­fected can be gleaned from the Data Privacy In­for­ma­tion ap­pended to these GTCs and from our Data Privacy State­ment view­able at www.​fsb.​de/.​

15. Collateral Agreements / Written Form / Text Form

Verbal col­lat­eral agree­ments shall not be entered into. Any amend­ments or ad­di­tions to these GTCs and the con­tract con­cluded between our­selves and the Or­der­ing Party shall only be valid if made in writing where so stip­u­lated, to the ex­clu­sion of elec­tronic or text forms. Amend­ments and ad­di­tions may like­wise be made in text form in the event of con­trac­tual clauses being con­cluded to this effect. This like­wise applies with regard to this Written/Text Form clause. Amend­ments other than in written or text form shall be deemed invalid. Nothing in this Written/Text Form clause shall affect the va­lid­ity of in­di­vid­ual agree­ments of what­ever nature.

16. Place of Fulfilment / Applicable Law / Place of Jurisdiction / Force Majeure

16.1
The place of ful­fil­ment for de­liv­er­ies and ser­vices shall be our cor­po­rate domi­cile.

16.2
These GTCs and any con­tracts con­cluded on their basis shall be subject to the law of the Federal Re­pub­lic of Germany to the ex­clu­sion of the Con­ven­tion on Con­tracts for the In­ter­na­tional Sale of Goods (CISG).

16.3
If the Cus­tomer is a com­mer­cial un­der­tak­ing or either a legal entity or special asset under public law, then the sole place of ju­ris­dic­tion for any dis­putes arising from this Con­tract shall be our cor­po­rate domi­cile. We are, however, also en­ti­tled to assert claims of our own at the Cus­tomer’s own place of ju­ris­dic­tion.

16.4
“Force Majeure”

16.4.1
des­ig­nates the oc­cur­rence of an event or cir­cum­stance (here­inafter col­lec­tively re­ferred to as “events”) that hinders or pre­vents one of the con­tract­ing parties from ho­n­our­ing one or more of their con­trac­tual oblig­a­tions if and to the extent that the party con­cerned is able to prove that

a) such a hin­drance lies beyond the bounds of rea­son­able control,
b) the event could not be rea­son­ably fore­seen when the con­tract was con­cluded, and
c) the effects of the hin­drance cannot be rea­son­ably avoided or over­come.

16.4.2
Where no ev­i­dence exists to the con­trary, it is assumed that the fol­low­ing events meet the con­di­tions laid down in Sub­clause 16.3.1 of this Clause:

a) cur­rency and trade re­stric­tions, em­bar­gos, sanc­tions;
b) lawful or un­law­ful au­thor­ity, com­pli­ance with leg­is­la­tion or of­fi­cial di­rec­tives, ex­pro­pri­a­tion, con­fis­ca­tion of fac­to­ries, req­ui­si­tion, na­tion­al­i­sa­tion;
c) epi­demic, pan­demic, natural cat­a­stro­phe or extreme act of nature;
d) ex­plo­sion, fire, de­struc­tion of equip­ment, lengthy failure of trans­port, telecom­mu­ni­ca­tions, in­for­ma­tion or power systems;
e) general labour or works dis­rup­tions such as boycott, strike and lock-out, oc­cu­pa­tion of fac­to­ries and premises; failure of pro­duc­tion fa­cil­i­ties and ma­chin­ery;
f) failure to meet de­liv­ery dates or non-de­liv­ery by our sup­pli­ers as well as stop­pages due to short­ages of raw ma­te­ri­als, power or labour, dif­fi­cul­ties in procur­ing means of trans­port, dis­rup­tions to traffic.

16.4.3
Where we jus­ti­fi­ably plead the ex­is­tence of the pre­req­ui­sites for force majeure, we shall be ex­empted from ho­n­our­ing our con­trac­tual oblig­a­tions as well as from all li­a­bil­ity for damage or other con­se­quences of con­trac­tu­ally agreed legal redress in the event of the con­tract being breached on or after the point in time when the hin­drance gives rise to dis­rup­tions in per­for­mance, as­sum­ing this is promptly no­ti­fied.

16.4.4
Should this not be promptly no­ti­fied, the al­le­vi­a­tion shall only take effect from the point in time when no­ti­fi­ca­tion is re­ceived by the other party. If the impact of the hin­drance or event as­serted is only tem­po­rary, the afore­men­tioned con­se­quences shall only apply for as long as the hin­drance as­serted impairs the per­for­mance of the af­fected party. Should the hin­drance last for more than two (2) months and result in the con­tract­ing parties being es­sen­tially de­prived of that which they were en­ti­tled to expect of the con­tract, either party shall have the right to serve rea­son­able notice to the other party to ter­mi­nate the con­tract or else to re­pu­di­ate same.

17. Saving Clause / Prevailing Language Version

17.1
Should in­di­vid­ual pro­vi­sions of these GTCs be invalid in whole or part, or should there be a gap in these GTCs, this shall not affect the va­lid­ity of the re­main­ing pro­vi­sions.

17.2
These GTCs were orig­i­nally drafted in German. In the event of their being trans­lated into English and of dis­crep­an­cies of content arising between the two ver­sions, the Ger­man-lan­guage version shall prevail.

Edited to: 11 No­vem­ber 2021