General Terms and Conditions for Frankonia Antriebstechnik GmbH hereinafter referred to as „Seller”
Status: November 2019
1. Scope of Application
1.1. Unless otherwise expressly agreed, the following Gen-eral Terms and Conditions shall apply to all contracts, deliv-eries and other services in business transactions with entre-preneurs (hereinafter referred to as "Buyer"). For the pur-poses of these General Terms and Conditions, an entrepre-neur is a natural or legal person or a partnership with legal capacity which, when concluding a legal transaction, acts in the exercise of its commercial or independent professional activity (§ 14 German Civil Code). Conflicting conditions or conditions of the Buyer deviating from these General Terms and Conditions, in particular purchasing conditions, are hereby expressly rejected. These shall not become part of the contract unless the Seller expressly agrees to them in writing.
1.2. These General Terms and Conditions shall apply to all contracts, framework contracts and business relations of any kind concluded between the Seller and the Buyer, even if the Seller has not expressly referred to their inclusion again in individual cases.
2. Offers and conclusion of contract
2.1. The offers contained in the Seller's catalogues and sales documents as well as on the internet are - unless ex-pressly designated as binding - always subject to confirma-tion, i.e. only to be understood as an invitation to submit an offer.
2.2. Orders shall be deemed accepted if they are either con-firmed in writing by the Seller or executed immediately after receipt of the order or on schedule. Then the delivery note or the goods invoice shall be regarded as order confirma-tion.
2.3. The Seller's obligation to perform shall be limited exclu-sively to his obligations as seller under the purchase con-tract. Consultancy or information services are expressly not agreed as an obligation of the Seller, unless there is an ad-ditional special agreement with additional remuneration for the Seller.
2.4. The Seller shall be entitled to issue partial invoices or advance invoices to the Buyer up to the full value of the goods in the contract. If the Buyer does not make payment to the Seller within a reasonable period (14 days) after re-ceipt of the down-payment or advance invoice, the Seller shall be released from its actual and temporal delivery obli-gations until payment of the down-payment or advance in-voice. Delivery dates promised by the Seller shall be post-poned accordingly. Insofar as the Buyer, after repeated re-quest by the Seller to settle the advance invoice with an ap-propriate deadline, does not perform the payment, the Seller shall be entitled to withdraw from the contract without further preconditions. In this case, claims for damages and/or reimbursement of expenses by the Buyer are ex-cluded. Proof of receipt of the invoice shall be furnished as agreed on the date of dispatch with the addition of two work-ing days.
3. Documents provided
The Seller reserves the property rights and copyrights to all documents handed over to the Buyer in connection with the placing of the order, such as calculations, drawings, etc.. These documents may not be made accessible to third par-ties unless the Seller gives the Buyer his express written consent. If a contract is not concluded, the documents must be returned to the Seller immediately.
4. Delivery, passing of risk and delay
4.1. The risk shall pass to the Buyer when the goods leave the Seller's premises. Unless otherwise agreed, delivery ex works is agreed. If the goods are collected by the Buyer, the risk shall pass to the Buyer when the goods are made avail-able at the Seller's premises. The risk shall also pass to the Buyer if delivery is made from the premises of a third party at the Seller's instigation. Loading and unloading are not subject of the contract.
4.2. Insofar as dispatch or delivery by the Seller has been agreed, this shall not affect the fact that the dispatch or de-livery is at the risk of the Buyer. Such an agreement only regulates the assumption of costs for the shipment or deliv-ery. If dispatch is delayed at the request or fault of the Buyer, the goods shall be stored at the expense and risk of the Buyer. The same shall apply if dispatch or delivery is delayed due to force majeure or obstacles occurring after conclusion of the contract for which the Seller is not respon-sible. In this case, the risk shall pass to the Buyer upon no-tification of readiness for dispatch or collection. In addition, the goods shall be stored at the Buyer's expense if the Buyer does not collect the goods or does not collect them in due time despite the pick-up agreement.
4.3. Partial deliveries are permissible to a reasonable ex-tent. In particular, they are permissible if the partial delivery can be used by the Buyer within the scope of the contractual purpose and if the delivery of the remaining ordered goods is ensured.
4.4. The delivery period shall be reasonably extended - even within a delay - in the event of force majeure and all unforeseen obstacles occurring after conclusion of the con-tract for which the Seller is not responsible (in particular also operational disruptions, strikes, lockouts or disruptions of traffic routes), insofar as these obstacles can be proven to have a considerable influence on the delivery. This shall also apply if these circumstances occur at the Seller's sup-pliers and their sub-suppliers. The Seller shall inform the Buyer of the beginning and end of such hindrances as soon as possible. The Buyer may demand a declaration from the Seller as to whether it intends to withdraw from the contract or deliver within a reasonable period of time. If the Seller does not declare his intention immediately, the Buyer may withdraw from the contract. Claims for damages and/or re-imbursement of expenses are excluded in this case.
4.5. The Seller shall be liable with regard to timely delivery only for his own fault and that of his vicarious agents. He shall not be liable for the fault of his suppliers, as they are not his vicarious agents. However, the Seller is obliged to assign to the Buyer any claims he may have against his suppliers upon request.
4.6. In the event of a delay in delivery, the Buyer shall, at the Seller's request, declare within a reasonable period of time whether he still insists on delivery or withdraws from the contract due to the delay and/or claims damages instead of performance. If the Buyer does not declare his intention within a reasonable period of time, the Seller may assume that the Buyer will withdraw from the contract due to the de-lay and/or claim damages in lieu of performance.
4.7. There shall be no fixed delivery period unless expressly agreed otherwise or confirmed in writing.
4.8. If the Seller is responsible for non-compliance with bind-ingly agreed deadlines and dates, Clause 9 of this agree-ment shall apply accordingly to compensation for delay. If there is liability according to this, this shall be lump-sum in the amount of 3% of the delivery value for each completed week of delay, but not more than 15% of the delivery value.
5. Packaging and transport
5.1. Packaging and transport shall be charged separately.
5.2. A return of packaging material is excluded if a suitable disposal company is engaged by the Seller for disposal in accordance with the Packaging Ordinance in its currently valid version or from 01.01.2019 in accordance with the Packaging Act. In this case, the Buyer is obliged to keep the packaging material ready and to hand it over to the disposal company. If the Seller agrees with the Buyer that the latter waives his right of return in return for a lump-sum disposal fee, the latter shall be obliged to hand over the used pack-aging to a recognised disposal company which guarantees orderly disposal in accordance with the provisions of the Packaging Ordinance.
5.3. Returnable packaging shall only be made available to the Buyer on loan. The return of the packaging unit shall be notified to the Seller by the Buyer in writing within 14 days and the packaging shall be made available. If this is not done, the Seller shall be entitled to demand 20% of the pur-chase price (but no more than the full purchase price) for each week from the third week onwards after reminder as a rental fee or to invoice the value of the packaging immedi-ately after receipt, which shall become due for payment.
6. Prices and payment
6.1. The prices are always exclusive of VAT and, unless otherwise specified, in Euro and ex works.
6.2. Unless otherwise agreed, the purchase price shall be due for payment without deduction on receipt of the goods within 30 days of the invoice date. Clause 6.11. of this agreement remains unaffected.
6.3. In the event of default in payment by the Buyer, the Seller shall be entitled to charge the Buyer interest at a rate of nine percentage points above the base interest rate from the date of the default on the outstanding purchase price obligation. The assertion of a higher damage caused by de-fault remains reserved. Possibly agreed discounts will not be granted in this case, even if the Buyer is in default with the payment of earlier deliveries.
6.4. A refusal or retention of payment is excluded, if the Buyer knew the defect or other reason to object at the time of contract conclusion.
6.5. A right of retention or set-off of the Buyer against due claims of the Seller from the total balance of the business relationship or from individual contracts exists only if the claims of the Buyer have been acknowledged, are undis-puted or legally established. The mere silence of the Seller on the assertion of such claims shall not be deemed to be recognition or undisputed status of the Buyer's claims. The above provisions shall also apply mutatis mutandis to the Buyer's rights to refuse performance.
6.6. If the price bases change substantially after conclusion of the contract, the Seller reserves the right to adjust the prices in accordance with the change in the price bases. In this case, the Buyer shall be entitled to withdraw from the contract if a price increase of at least 10% has been rec-orded since conclusion of the contract. The Seller's ex-penses for material, labour costs and external services in-curred up to that point shall be reimbursed.
6.7. The prices are for complete sales or packaging units. In the event of any changes requested by the Buyer, the Seller shall be entitled to charge a surcharge for the corresponding additional costs.
6.8. If orders are cancelled, reduced or modified by the Buyer, the Seller shall be entitled to charge the Buyer for the administrative, storage and transport costs incurred up to that point. The same applies to special productions for the procurement and production costs. Return deliveries or cancellations of ordered and delivered goods by the Buyer are only possible after consultation with the Seller. In this case, the Seller is entitled to deduct the costs of restocking when the goods are credited.
6.9. The Buyer shall be obliged to secure all deliveries and services prior to acceptance of the order by bank guarantee, payment default insurance or similar security.
6.10. The Seller shall be entitled to initially set off payments against older debts. If interest and costs have already been incurred, each incoming payment shall first be set off against the interest and finally against the principal pay-ment.
6.11. The Seller reserves the right, especially in the case of unknown Buyers, to make payment only against advance payment or concurrent payment.
6.12. The Seller is entitled to charge a reminder fee of € 5.00 plus VAT as of the second reminder. The Seller is entitled to charge € 6.00 plus VAT for the issuing fee for bills of ex-change. In the case of returning direct debit, dishonoured cheque (cheque back) and for a bill of exchange recall, 15.00 € plus VAT as well as the bank charges incurred will be charged.
7. Retention of title
7.1. The Seller retains title to the goods until the purchase price has been paid in full. In the case of goods which the Buyer purchases from him within the framework of an ongo-ing business relationship, the Seller reserves title until all his claims against the Buyer arising from the business relation-ship, including future claims, including those arising from contracts concluded at the same time or later, have been settled. This shall also apply if individual or all claims of the Seller have been included in a current account and the bal-ance has been deducted and acknowledged. If the Buyer is in default of payment, the Seller is entitled to take back the goods after a reminder and the Buyer is obliged to surrender them.
7.2. If the reserved goods are processed by the Buyer into new movable goods, it is agreed that the processing shall be carried out in the name and for the account of the Seller as manufacturer within the meaning of § 950 German Civil Code and that the Seller shall directly acquire ownership or - if the processing is carried out from materials of several owners or the value of the processed goods is higher than the value of the reserved goods - co-ownership of the newly created goods in the ratio of the value of the reserved goods to the value of the newly created goods at the time of pro-cessing. In the event that no such acquisition of ownership should occur with the Seller, the Buyer shall already now transfer his future ownership or - in the aforementioned pro-portion - co-ownership of the newly created item to the Seller as security. If the reserved goods are combined or inseparably mixed with other items to form a uniform item (§§ 947,948 German Civil Code), the Seller shall acquire co-ownership of the newly created item in accordance with the statutory provisions. If, as a result of the combination or mixing, one of the other items is to be regarded as the main item, the Buyer, insofar as he owns the main item, hereby transfers co-ownership to the Seller in the ratio of the value of the reserved goods to the value of the newly created item at the time of the combination or mixing. In such cases, the Buyer shall store the object owned or co-owned by the Seller, which shall also be deemed to be reserved goods within the meaning of the above conditions, free of charge.
7.3. If reserved goods are sold alone or together with goods not belonging to the Seller, the Buyer hereby assigns, i.e. at the time of conclusion of the contract, the claims arising from the resale in the amount of the value of the reserved goods with all ancillary rights and priority over the rest; the Seller accepts the assignment. The value of the goods sub-ject to retention of title shall be the invoice amount of the Seller, which, however, shall not be taken into account if the rights of third parties conflict with it. If the resold reserved goods are co-owned by the Seller, the assignment of the claims shall extend to the amount corresponding to the Seller's share in the co-ownership.
7.4. If reserved goods are installed by the Buyer as an es-sential component in the property, ship, ship under con-struction or aircraft of a third party, the Buyer already now assigns the assignable claims against the third party or the one it concerns for remuneration in the amount of the value of the reserved goods with all ancillary rights including such rights to the granting of a security mortgage with priority over the rest, the Seller accepts the assignment. Clauses 9.3, sentences 2 and 3 shall apply accordingly.
7.5. The Buyer is entitled to resell, use or install the reserved goods only in the ordinary course of business and only sub-ject to the proviso that the claims within the meaning of clauses 7.3. and 7.4. are actually transferred to the Seller. If the Buyer has agreed with his Buyers on a prohibition of assignment with regard to this claim, the authorisation to re-sell shall lapse. The Buyer shall not be entitled to dispose of the reserved goods in any other way, in particular by pledg-ing them or assigning them as security. An assignment by way of genuine factoring is only permitted to the Buyer un-der the condition that the Seller is notified of this with notifi-cation of the factoring bank and the accounts of the Buyer maintained there and that the factoring proceeds exceed the value of the secured claim of the Seller. The Seller's claim becomes due when the factoring proceeds are cred-ited.
7.6. Subject to revocation, the Seller authorises the Buyer to collect the claims assigned pursuant to clauses 9.3 to 9.5. The Seller shall not make use of its own right to collect as long as the Buyer meets its payment obligations, also vis-à-vis third parties. At the Seller's request, the Buyer shall in-form the Seller immediately of the business addresses and private addresses of his Buyers to whom the reserved goods or goods in which the delivered goods of the Seller have been incorporated as an essential part have been de-livered. The notification also includes the Buyer's obligation to list the extent to which these deliveries have already been settled by his Buyers and which claims are still outstanding here in detail.
7.7. The Buyer shall inform the Seller immediately of any enforcement measures taken by third parties against the re-served goods or the assigned claims, handing over the doc-uments necessary for the objection. The Seller shall be en-titled to demand compensation from the Buyer for the costs of judicial and extrajudicial defence against enforcement measures.
7.8. The right to resell, use or install the reserved goods or the authorisation to collect the assigned claims shall lapse upon cessation of payments and/or filing for insolvency pro-ceedings; the authorisation to collect shall also lapse in the event of a cheque protest. This shall not apply to the rights of the insolvency administrator.
7.9. If the value of the securities granted exceeds the claims reduced by down payments and partial payments by more than 10 percent, the Seller shall be obliged to retransfer or release the securities at his discretion. Upon redemption of all claims of the Seller arising from the business relation-ship, ownership of the reserved goods and the assigned claims shall pass to the Buyer.
7.10. The Buyer is obliged to treat the reserved goods with care. In particular, he is obliged to sufficiently insure them at his own expense against theft, fire and water damage at replacement value. If maintenance and inspection work must be carried out, the Buyer must carry this out in good time at his own expense.
8. Notice of defects, warranty and liability
8.1. The Buyer shall immediately inspect the goods received for quantity and quality. Defects shall be notified to the Seller in writing, otherwise the delivery shall be deemed ap-proved. Notification of defects is delayed if recognizable de-fects are not reported in text form immediately after receipt of the goods. Notification of obvious defects shall only be deemed timely if it is received by the Seller in text form within a period of 14 days from delivery. Otherwise §§ 377, 378 German Commercial Code apply.
8.2. If the Buyer discovers defects in the goods, he may not dispose of them, i.e. they may not be divided, resold or fur-ther processed until an agreement has been reached on the handling of the complaint or an expert commissioned by the Chamber of Industry and Commerce at the Buyer's place of business has carried out an evidence preservation proce-dure.
8.3. The Buyer shall be obliged to make the object of sale complained about available to the Seller for the purpose of examining the complaint. In the event of culpable refusal, the warranty shall lapse.
8.4. In the case of justified complaints, the Seller is entitled to determine the type of subsequent performance (replace-ment delivery, rectification of defects) taking into account the nature of the defect and the justified interests of the Buyer.
8.5. Claims for material defects of the Buyer shall become statute-barred within twelve months after delivery. § 438 Para. 1 No. 2 and § 634a Para. 1 No. 2 German Civil Code, remain unaffected. The Buyer's right of recourse against the Seller pursuant to §§ 478, 479 German Civil Code shall not be affected by the above provisions. However, these rights of recourse shall only exist to the extent that the Buyer was in turn obliged by law to meet the rights of recourse asserted against the Seller against his Buyer pursuant to §§ 478, 479 of the German Civil Code, taking into account all time limits and preclusive periods.
8.6. If repair orders are accepted or if alterations or conver-sions are made to goods used by the Seller or by third par-ties, the Seller shall not assume any warranty. When carry-ing out a repair or commissioning, we expressly assume no warranty or liability for:
- the functioning of the whole system, in which the repaired component was installed or is installed
- the correct dimensioning of the overall system and appli-cation of the repaired component in the overall system.
8.7. When buying used goods, warranty claims of the Buyer are excluded in total.
8.8. Warranty claims do not exist in case of only insignificant deviation from the agreed quality, in case of only insignifi-cant impairment of usability, in case of natural wear and tear. If the goods are used other than as contractually stip-ulated (e.g. with unsuitable equipment, unsuitable building ground or special external influences, improper repair work or modifications), there shall be no claims for defects.
8.9. Claims of the Buyer for expenses necessary for the pur-pose of subsequent performance, in particular transport, travel, labour and material costs, are excluded to the extent that such expenses increase or arise because the goods have been taken to a location other than the Buyer's branch office, unless this corresponds to their intended use.
8.10. The Buyer's right of recourse against the Seller shall only exist to the extent that the Buyer has not entered into any agreements with his Buyer that go beyond the legally mandatory claims for defects. Clause 8.8. shall apply muta-tis mutandis to the scope of the claim.
9. Claims for damages
Claims for damages of the Buyer, regardless of the legal basis, in particular due to impossibility, delay, defective or incorrect delivery, breach of contract, breach of duties dur-ing contract negotiations and tort, are excluded for slight negligence. This exclusion of liability shall not apply in the case of injury to life, limb or health and in the case of slightly negligent breach of essential contractual obligations. In cases of slightly negligent breach of essential contractual obligations, liability shall be limited to compensation for the typical damage foreseeable at the time of conclusion of the contract. Indirect damages or consequential damages can only be compensated if they are typically to be expected when the goods are used as intended. The above exclu-sions and limitations of liability shall apply to the same ex-tent in favour of the organs, legal representatives, employ-ees and other vicarious agents of the Seller. As far as the Seller or his vicarious agents provide technical information or act in an advisory capacity without this being contractu-ally owed, this is done free of charge and to the exclusion of any liability.
10. Place of jurisdiction and applicable law
10.1. Place of performance and place of jurisdiction for de-liveries and payments as well as all disputes arising be-tween the parties shall be the registered office of the Seller, insofar as the Buyer is a merchant, a legal entity under pub-lic law or a special fund under public law. However, the Seller is also entitled to sue the Buyer at his place of busi-ness.
10.2. The legal assessment of the relations between the contracting parties shall be governed exclusively by the for-mal and substantive law applicable in the Federal Republic of Germany to the exclusion of the UN Convention on Con-tracts for the International Sale of Goods (CISG). Further-more excluded are reference standards of German interna-tional private law which would lead to the application of for-eign legal standards or foreign jurisdictions.
11 Severability clause and written form
11.1. Should individual provisions be invalid, partially invalid or unenforceable, this shall not affect the validity of the re-maining provisions. Instead of the invalid, partially invalid or unenforceable provisions, the parties agree to set a provi-sion that comes closest to the meaning and purpose of the invalid, partially invalid or unenforceable provision. Should the parties fail to reach such an agreement, the invalid, par-tially invalid or unenforceable provision shall be replaced at the request of the parties by the statutory provision which comes closest to the meaning and purpose of the invalid, partially invalid or unenforceable provision.
11.2. Amendments and supplements must be made in writ-ing. This also applies to the waiver of this written form clause.