General Terms and Conditions of FibreCoat GmbH
1 Scope of Application
Our deliveries are made exclusively on the basis of the following Terms and Conditions of Sale (“Terms”).
These Terms shall exclusively apply vis á vis to our Customers (“Customer“) who are entrepreneurs, legal entities under public law or special funds under public law within the meaning of Section 310 (1) of the German Civil Code (BGB). Conflicting terms and conditions of the Customer or terms and conditions of the Customer that deviate from or contradict our Terms shall not apply unless we have acknowledged their validity in writing.
These Terms shall also govern all future transactions with the Customer, provided that they are transactions of a related nature.
Individual agreements made with the Customer in individual cases (including additional agreements, supplements and amendments) shall take precedence over these Terms in all cases. The contents of such agreements shall require a written contract and/or our written confirmation in order to be valid, subject to proof to the contrary.
2 Offer and Conclusion of Contracts
Our offers are always subject to change and non-binding. This also includes any catalogues, technical documentation, other product descriptions or documents – also in electronic form – which we have provided to the Customer and to which we reserve the property rights and copyrights.
Orders placed by Customer shall be deemed a legally binding offer. Unless otherwise stated in the order, we shall be entitled to accept an offer within 14 days of its receipt by us.
The order acceptance by us shall be made in writing. The unconditional delivery of the ordered goods shall also be deemed to be an acceptance of an offer.
3 Provided Documents
We reserve the property rights, copyrights and the rights under the Patent Act (Patentgesetz) and Utility Model Act (Gebrauchsmustergesetz) to all documents – also in electronic form – provided to the Customer in connection with the placing of the order, such as calculations, brochures, illustrations, drawings, etc.. The provision of documents is not intended to grant a licence. These documents shall not be used or reproduced by the Customer or made accessible to third parties unless we give the Customer our express written consent to do so. If the Customer’s offer is not accepted, these documents must be returned to us without undue delay.
4 Prices and Payment
Unless otherwise agreed in writing, our current prices at the time of conclusion of the contract shall apply, ex works excluding packaging and shipping and plus respective statutory value added tax on the date of invoicing. Packaging costs shall be invoiced separately. We shall inform the Customer of the respective current prices upon written request.
Payment of the purchase price shall be made exclusively to the account stated overleaf. The deduction of a discount is only permissible with a special written agreement. The costs of payment transactions shall be borne by the Customer.
The purchase price is to be paid within 14 days after delivery and receipt of an invoice by the Customer, unless a different date has been agreed as the term of payment (“Due Date”). However, we are entitled, during an ongoing business relationship, to make a delivery in whole or in part only against advance payment. We shall declare a corresponding reservation at the latest with the order confirmation.
The Customer shall be in default 10 days after the Due Date without the need for a reminder. Default interest shall be charged at a rate of 9 percentage points above the respective base interest rate p.a. unless higher interest rates have been agreed. We reserve the right to claim higher damages for default.
Unless a fixed price agreement has been made, we reserve the right, after timely notice to the Customer and before delivery of the goods, to increase the price of the goods as required by general external price increases beyond our control (such as exchange rate fluctuations, currency regulations, changes in customs duties, significant increases in material or manufacturing costs) or as required by changes in suppliers, and we shall ensure a price reduction if external costs are reduced or eliminated altogether.
Each party is responsible for their own bank transaction costs when paying or receiving funds.
5 Rights of Retention, Set-Off
The Customer shall only be entitled to set-off to the extent that its counterclaim is undisputed or has been finally adjudicated. The Customer shall only be entitled to assert rights of retention on the basis of counterclaims arising from the same contractual relationship.
6 Delivery and Delivery Time
Unless a fixed period or a fixed date has been assured or agreed in individual cases, the delivery periods and dates stated by us are only approximate. If shipment has been agreed, delivery periods and delivery dates refer to the time of handover to the shipper, carrier or other third party commissioned with the transport.
If we are unable to meet binding delivery deadlines for reasons for which we are not responsible, we shall inform the Customer of this without undue delay and at the same time notify the Customer of the expected new delivery time. If delivery is also not available within the new delivery period, we shall be entitled to withdraw from the contract in whole or in part; we shall immediately reimburse any counter-performance made by the Customer. A case of non-availability of delivery in this sense shall be deemed to be in particular the non-timely self-delivery by our suppliers if we have concluded a concurrent covering transaction, neither our supplier nor we are at fault or we are not obliged to procure in the individual case.
7 Delivery, Transfer of Risk, Default of Acceptance
Delivery shall be made ex works, which is also the place of performance for the delivery and any supplementary performance. The risk of accidental loss and accidental deterioration of the goods shall pass to the Customer upon handover at the latest.
If the goods are shipped at the request of the Customer to a destination other than that specified in § 7 (1), the risk of accidental loss or accidental deterioration of the goods shall pass to the Customer upon delivery of the goods to the forwarding agent, the carrier or any other person or institution designated to carry out the shipment.
If the Customer is in default of acceptance, culpably violates other obligations to cooperate or if our delivery is delayed for other reasons for which the Customer is responsible, we shall be entitled to demand compensation for the damage incurred by us as a result, including (but not limited to) any additional expenses (e.g. storage costs). We reserve the right to assert further claims.
In the event of the above § 7 (3), the risk of accidental loss or accidental deterioration of the goods shall pass to the Customer at the time at which the Customer culpably falls into default of acceptance.
We are entitled to make partial deliveries if partial delivery is usable for the Customer within the scope of the contractual purpose, the delivery of the remaining ordered goods is ensured and the Customer does not incur any significant additional expenses or costs as a result (unless we agree to bear these costs).
If we are in default with a delivery or service or if a service becomes impossible for us, for whatever reason, our liability towards the Customer shall be limited in accordance with § 11 of these Terms.
8 Retention of Title
We retain title to the delivered goods (“Reserved Goods”) until full payment of all current and future claims arising from the contract and an ongoing business relationship. This also applies to all future deliveries, even if we do not always expressly refer to this.
The Customer is obliged to treat the goods with due care as long as ownership has not yet passed to him. In particular, the Customer is obliged to insure them adequately at their own expense against theft, fire and water damage at replacement value. As long as ownership has not yet passed to the Customer, the Customer must inform us immediately in writing if the delivered goods are seized or exposed to other interventions by third parties. Insofar as the third party is not in a position to reimburse the court and out-of-court costs of an action in accordance with § 771 of the German Code of Civil Procedure (ZPO), the Customer shall be liable to us for the damage incurred to the extent that he is at fault.
The Customer is entitled to resell and/or process the Reserved Goods in the ordinary course of business. The Customer hereby assigns to us the claims against his customers arising from the resale of the Reserved Goods in the amount of the final invoice amount agreed with us (including value added tax). We hereby accept such assignment. This assignment shall apply irrespective of whether the Reserved Goods have been resold without or after processing. The Customer remains authorised to demand payment even after the assignment. Our authority to demand payments ourselves remains unaffected by this. However, we undertake not demand payments as long as the Customer meets his payment obligations, is not in default of payment and, in particular, does not file for insolvency proceedings.
The processing or transformation of the Reserved Goods by the Customer shall always be carried out in our name and for our account as manufacturer. In this case, the Customer‘s expectant right to the Reserved Goods shall continue to apply to the transformed good. If the Reserved Goods are processed with other goods not belonging to us, we shall acquire co-ownership of the new good in the ratio of the objective value of the Reserved Goods to the value of the newly created good. The same shall apply in the event of mixing of goods. If the mixing takes place in such a way that the other good is to be regarded as the main good, the Customer shall transfer to us, provided that the main good belongs to him, pro rata co-ownership of the combined good. To secure the claims against the customer, the Customer also assigns to us such claims as accrue to him against a third party through the combination of the Reserved Goods with real estate; we hereby accept such assignment.
If the realisable value of the securities exceeds our claim by more than 10 %, we shall release securities of our choice at the request of the Customer.
9 Warranty and Notice of Defects as well as Recourse/Manufacturer Recourse
The statutory provisions shall apply to the rights of the Customer in the event of material defects and defects of title (including wrong delivery and short delivery), unless otherwise stipulated below.
Warranty rights of the Customer require that the Customer has duly complied with its statutory obligations to inspect the goods and to give notice of defects (§§ 377, 381 of the German Commercial Code (HGB)). In the case of building materials and other goods intended for installation or other further processing, an inspection must in any case take place immediately before processing.
If a defect becomes apparent upon delivery, inspection or at any later time, the Customer shall notify us thereof in writing without undue delay. In any case, obvious defects must be reported in writing within 5 working days of delivery and defects that are not recognisable during the inspection must be reported within the same period of time after discovery. If the Customer fails to carry out the proper inspection and/or to give notice of defects, our liability for the defect that was not reported or not reported in time or not reported properly shall be excluded in accordance with the statutory provisions.
Claims for defects shall be subject to a limitation period of one year commencing upon delivery. Insofar as acceptance of the goods is agreed, the limitation period shall commence upon acceptance. However, claims for damages by the Customer under the Product Liability Act shall become time-barred exclusively in accordance with the statutory limitation periods. The statutory limitation period shall apply to claims for damages in the case of intent and gross negligence as well as in the case of injury to life, body and health based on an intentional or negligent breach of duty. Insofar as the law mandatorily prescribes longer periods in accordance with § 438 para. 1 no. 2 BGB (buildings and items for buildings), § 445 b BGB (right of recourse) and § 634a para. 1 BGB (construction defects), these periods shall apply.
If the delivered goods have a defect that was already present at the time of the transfer of risk, we shall, at our discretion, either repair the goods or deliver replacement goods, subject to timely notification of defects. The supplementary performance shall neither include the removal of the defective goods nor the renewed installation if we were not originally obliged to install the goods.
Claims for defects shall not exist in the case of only insignificant deviation from the agreed quality, in the case of only insignificant impairment of usability, in the case of natural wear and tear as well as in the case of damage which occurs after the transfer of risk as a result of incorrect or negligent handling, excessive stress, unsuitable operating materials, defective construction work, unsuitable building ground or due to special external influences which are not assumed under the contract.
We are entitled to make the supplementary performance owed dependent on the Customer paying the purchase price when due. However, the Customer is entitled to retain a reasonable part of the purchase price in relation to the defect.
The Customer shall give us the time and opportunity required for the subsequent performance owed, in particular hand over the goods complained about for inspection purposes. In the event of a replacement delivery, the Customer must return the defective item to us in accordance with the statutory provisions.
We shall bear the expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labour and material costs, in accordance with the statutory provisions if there is actually a defect. Otherwise, we are entitled to demand reimbursement from the Customer of the costs incurred as a result of the unjustified request for rectification of the defect (in particular inspection and transport costs), unless the lack of defectiveness was not recognisable to the Customer.
If the supplementary performance has failed or if a reasonable period to be set by the Customer for supplementary performance has expired unsuccessfully or is dispensable according to the statutory provisions, the Customer may withdraw from the contract or reduce the purchase price. Such a right of withdrawal shall not exist if the defect is only insignificant.
The Customer’s right of recourse against us shall only exist insofar as the Customer has not entered into any agreements with its customer that go beyond the statutory mandatory claims for defects. Furthermore, paragraph 7 shall apply accordingly to the scope of the Customer’s right of recourse against us.
10 Property Rights
We warrant in accordance with this § 10 that the delivered goods are free from industrial property rights or copyrights of third parties. Each party shall notify the other party in writing without undue delay if claims are asserted against it due to the infringement of such rights.
In the event that the delivered goods infringe an industrial property right or copyright of a third party, we shall, at our discretion and at our expense, modify or replace the delivered goods in such a way that no rights of third parties are infringed anymore, but the delivered goods continue to fulfil the contractually agreed functions, or procure the right of use for the Customer by concluding a licence agreement with the third party. If we do not succeed in doing so within a reasonable period of time, the Customer shall be entitled to withdraw from the contract or to reduce the purchase price appropriately. Any claims for damages on the part of the Customer are subject to the restrictions of § 11 of these Terms.
Unless otherwise stated below, our liability for damages, irrespective of the legal grounds, shall be limited in accordance with this § 11. This applies in particular to claims for damages arising from delay, from impossibility of performance, from breach of ancillary contractual obligations, from breach of obligations during contractual negotiations and from tort, insofar as fault is relevant in each case. Claims from supplier recourse are excluded if the defective goods have been further processed by the Customer or another entrepreneur, e.g. by installation in another product.
We shall be liable for damages – irrespective of the legal grounds – within the scope of culpability in the event of intent, gross negligence and culpable breach of material contractual obligations (obligations whose fulfilment is essential to the proper performance of the contract and on whose observance the contractual partner regularly relies and may rely). In the event of culpable breach of essential contractual obligations, we shall only be liable for reasonably foreseeable damage typical for the contract, except in cases of intent or gross negligence.
The limitation of liability shall furthermore not apply in the event of injury to life, body or health caused by an intentional or negligent breach of duty by us or an intentional or negligent breach of duty by a legal representative or vicarious agent of us or for liability under the German Product Liability Act (Produkthaftungsgesetz).
12 Final Provisions
This contract and the entire legal relationship between the parties shall be governed by the laws of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods (CISG).
The place of performance and exclusive – also international – place of jurisdiction for all disputes arising from this contract shall be the place of the registered office of FibreCoat GmbH (currently Aachen), provided that the Customer is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law. The same shall apply if the Customer is an entrepreneur within the meaning of § 14 BGB. However, we are also entitled in all cases to bring an action at the place of performance of the delivery obligation in accordance with these general terms and conditions of sale or a priority individual agreement or at the general place of jurisdiction of the Customer. Overriding statutory provisions, in particular on exclusive jurisdiction, shall remain unaffected by this § 12.
In the event that the contract or these Terms contain gaps, the legally effective provisions which the contracting parties would have agreed in accordance with the economic objectives of the contract and the purpose of these Terms if they had been aware of the gaps shall be deemed to have been agreed in order to fill these gaps.