Terms and Conditions - F&S Elementebau GmbH

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Terms and Conditions of Purchase

1. General

These purchasing conditions of F&S Elementebau GmbH apply to all orders – including future orders – placed by our company, unless different conditions are used or agreed upon in individual cases.

However, the supplier’s general terms and conditions shall only apply if they are expressly agreed to in writing; this shall also apply in the event that we accept delivery without reservation despite being aware of terms and conditions of the supplier that conflict with or deviate from our terms and conditions of purchase.

2. Orders, order confirmations

Orders and purchase orders are placed in writing, by telephone, by fax or by data transmission on the basis of these Terms and Conditions of Purchase.
The delivery dates stated in the order are binding; if the supplier does not immediately reject the order after receipt, the order and the stated date shall be deemed accepted.
Our orders and agreements are only binding for us if they have been placed by us and include the order number.

3. Prices, payments

The prices agreed upon at the time of the order for the delivery date are binding. Unless expressly agreed otherwise in writing, this price includes delivery „free to your door,“ including packaging and display.
Unless otherwise agreed in writing, we will pay the purchase price, calculated from the date of delivery and receipt of the invoice. Payment is binding for us within 14 days with a 2% discount, or within 30 days net.

4. Delivery/Liability

The supplier must deliver the goods free of defects and free of charge in accordance with the order specifications. All risks associated with delivery, in particular the procurement and shipping risks, are borne by the supplier, even if the supplier engages third parties to fulfill its delivery obligations.
All deliveries must comply with the applicable legal regulations and contractual specifications in terms of form and content. This includes, in particular, compliance with all product-specific and legal regulations, as well as official requirements and orders, including compliance with technical standards. The supplier must also comply with the agreed declaration and labeling conditions. The goods must be delivered free of legal defects and material defects (§§ 434, 435 BGB).
At the supplier’s request, goods that do not meet the aforementioned requirements will be returned to a location specified by the supplier, subject to reimbursement of the costs incurred. Otherwise, the purchaser’s rights under Sections 280 et seq. of the German Civil Code (BGB) remain unaffected. If the supplier breaches an obligation arising from the contractual relationship, the purchaser is entitled to the rights under Sections 280–283 of the German Civil Code (BGB) in addition to the claim for reimbursement of expenses under Section 284 of the BGB.
Partial deliveries are only permitted if we expressly agree to them in writing.
The supplier is liable for shortages in accordance with Sections 280 and 281 of the German Civil Code (BGB) even without setting a grace period.
In the event of shortages or incorrect deliveries for which the supplier is responsible, and in the event of deliveries not made without defects, the supplier shall be liable for any resulting damages, in particular for damages incurred by the purchaser as a result of purchases to cover the costs. Further statutory claims remain reserved. The supplier has the right to prove to the purchaser that no or lesser damages were incurred as a result of the delay.
The rights of Sections 478 and 479 of the German Civil Code (BGB) also apply without restriction to the contractual relationship with the supplier.
If the supplier is in default, the purchaser may claim compensation of 1% for each completed week of delay, but not more than 10% of the price for that part of the deliveries which could not be put into proper operation due to the delay.
In the event that the supplier is unable to meet our warranty claims for economic reasons (e.g. due to insolvency), the supplier shall assign to us, upon conclusion of the contract, any warranty claims to which it is entitled against its suppliers, including all ancillary rights (assignment subject to a condition precedent).

5. Delivery documents/invoices

A delivery note must be enclosed with all shipments. All shipping documents and all documents related to the delivery contract must include the item description, material number, order number, order date, quantities, and type of packaging.

6. Material defects

Claims for material defects expire after 24 months. This does not apply if the law prescribes longer periods, nor in cases of injury to life, body, or health due to an intentional or grossly negligent breach of duty by the supplier, or in the case of fraudulent concealment of a defect.
In the event of complaints about defects, the purchaser may retain payments that are proportionate to the defects that have occurred.
In addition to the statutory right to subsequent performance, the purchaser may – without prejudice to any claims for damages – withdraw from the contract, reduce the remuneration and demand reimbursement of expenses.
The supplier must implement quality assurance of a type and scope appropriate to the latest state of the art and provide evidence of this to the purchaser upon request.

7. Software use

To the extent that software is included in the scope of delivery, the customer is granted a non-exclusive right to use the supplied software, including its documentation. It is provided for use on the intended delivery item. Use of the software on more than one system is prohibited.

The purchaser may only reproduce, revise, translate, or convert the software from object code to source code to the extent permitted by law (Sections 69a et seq. of the German Copyright Act). The purchaser undertakes not to remove manufacturer’s information—in particular copyright notices—or to modify it without the prior express consent of the supplier.

All other rights to the software and documentation, including copies, remain with the supplier or the software supplier. Sublicensing is not permitted.

8. Industrial property rights

The Supplier is obligated to provide the delivery free of any third-party industrial property rights and copyrights. If a third party asserts claims against the Purchaser for infringement of intellectual property rights by deliveries made by the Supplier and used in accordance with the contract, the Supplier shall be liable to the Purchaser for such claims.
All drawings and other technical documents provided to you for the execution of orders remain our property and may only be used to the extent authorized by us; reproduction is permitted only with our consent.

9. Duty of confidentiality

Our orders and all related commercial and technical details are to be treated as business secrets.

10. Product liability

To the extent that the supplier is responsible for product damage, he must indemnify the purchaser against all claims for damages from third parties (including consequential damages).
The supplier must take out appropriate product liability insurance and maintain it for the duration of the business relationship.

11. Impossibility

If delivery is impossible, the customer is entitled to claim damages.
The purchaser’s right to withdraw from the contract remains unaffected. If unforeseeable events significantly change the economic significance or content of the delivery or significantly impact the supplier’s operations, the contract will be appropriately adjusted in good faith.

12. Severability Clause

The contract remains binding even if individual provisions are legally invalid.

13. Place of jurisdiction/place of performance

The place of performance for all deliveries and services is the place of receipt specified in the order.

The place of jurisdiction for all legal disputes arising from orders and deliveries is Heilbronn, provided that the supplier is a registered merchant or a legal entity under public law.

We reserve the right to sue the supplier at another jurisdiction.

The law of the Federal Republic of Germany applies, excluding the UN Convention on Contracts for the International Sale of Goods (CISG

within the meaning of the terms and conditions of sale and delivery

1. General provisions

The scope of the deliveries or services to be provided by F&S Elementebau GmbH shall be determined by the mutual written declarations. The basis for any contract concluded shall continue to be our general terms and conditions of sale and delivery set out below. We do not recognize the client’s general terms and conditions of sale or any terms and conditions that deviate from ours unless we have expressly agreed to their validity.
Offers are made in writing or require written confirmation. Orders placed become binding for us only once they have been confirmed in writing.

2. Prices and payment terms

For invoicing, the date of delivery or storage is decisive for contractual partners (including the client). Our invoices are payable within 30 days of the invoice date without deductions. Separate agreements apply to regular and new customers, with payment terms as per the offer/order confirmation. Otherwise, the general payment terms apply to all contractual partners.
In case of late payment, default interest of 9% pa above the base interest rate shall be charged.
The client may only offset claims that are undisputed or legally established.
In the event of a price increase compared to the calculation valid at the time of order acceptance, we are entitled to adjust agreed prices accordingly, taking into account any demonstrably incurred increases in wages, raw materials or other production costs, or in the event of an increase in taxes or other duties.
Prices are generally quoted in euros. If invoiced in a different currency, the supplier reserves the right to subsequently invoice for unpaid deliveries in the event of exchange rate fluctuations.

3. Production period and delivery

Events of force majeure, operational disruptions, and delivery delays on the part of our suppliers release us from our commitments to meet delivery dates. Claims for damages – regardless of the legal basis – cannot be made in these cases.
Partial deliveries are permitted.
If F&S Elementebau GmbH is culpably in default with delivery, the contractual partner may – provided that he can credibly demonstrate that he has suffered damage as a result – demand compensation of 0.5% for each completed week of delay, but not more than 5% of the price for that part of the delivery which does not correspond to proper contract fulfilment due to the delay.
Both claims for damages by the client due to delayed delivery and claims for damages in lieu of performance that exceed the claims in the aforementioned section are excluded in all cases, even after the expiration of a delivery deadline set by F&S Elementebau. This does not apply to mandatory liability in cases of intent, gross negligence, or injury to life, limb, or health.
The client may only withdraw from the contract within the framework of the statutory provisions if the delay in delivery is attributable to F&S Elementebau GmbH. The above provisions do not entail a change in the burden of proof to the detriment of the client.
Information and illustrations in this brochure are not necessarily definitive; modifications or improvements to our products are permitted.

4. Retention of title

The delivered goods remain the property of the supplier until full payment of the agreed price or until the encashment of the checks or bills of exchange provided for this purpose. They may not be pledged or assigned as security without the supplier’s consent until full payment or encashment of the checks or bills of exchange provided for this purpose. The customer is only entitled and authorized to resell the reserved goods on the condition that the purchase price claim from the resale is transferred to the supplier. The customer’s claims from the resale of the reserved goods are hereby assigned to the supplier, who hereby accepts this assignment. A lien is created on all raw materials of any kind handed over by the customer with respect to all claims of the supplier upon handover.
If the customer defaults on payment of a due claim arising from the business relationship for more than two weeks or if he ceases to make payments, we may demand immediate delivery of the reserved goods.

5. Transfer of risk

Shipping is generally at the risk of the contractual partner, even if freight-free delivery has been agreed or the transport is carried out by our vehicles.
At the request and expense of the client, deliveries from F&S Elementebau GmbH can be insured against the usual transport risks.
Unless the customer specifies specific instructions, the choice of shipping route, means of transport and packaging shall be made at our discretion, without any guarantee of the cheapest shipping method.
If an object is to be delivered on-site, including assembly, the supplier is liable for any damage caused to the object through the fault of the installers appointed by the supplier until assembly is completed. Any other risk is borne by the customer.

6. Software use

The purchaser may only reproduce, revise, translate, or convert the software from object code to source code to the extent permitted by law (Sections 69a et seq. of the German Copyright Act). The purchaser undertakes not to remove manufacturer’s information – in particular copyright notices – or to modify it without the prior express consent of the supplier.

All other rights to the software and documentation, including copies, remain with the supplier or the software supplier. Sublicensing is not permitted.

7. Material defects

F&S Elementebau GmbH is liable for material defects as follows:

All services that exhibit a material defect, the cause of which already existed at the time of transfer of risk, may be repaired, replaced or re-performed free of charge at the discretion of the supplier (F&S Elementebau).
Claims for material defects expire after 12 months. This period begins upon delivery of the goods and receipt of the goods by the customer of F&S Elementebau GmbH.
This shall not apply if the law stipulates longer periods pursuant to Sections 438 12, 479 I, 634 a 12 BGB, or in cases of injury to life, body or health in the event of an intentional or grossly negligent breach of duty by the supplier and in the event of fraudulent concealment of a defect.
The statutory provisions on suspension of the expiry, interruption and restart of time limits remain unaffected.
F&S Elementebau must first be granted the opportunity to remedy the defect within a reasonable period of time.
If the subsequent performance fails, the customer may – without prejudice to any claims for damages – withdraw from the contract or reduce the remuneration.
The client may not refuse to accept deliveries due to minor defects.
Claims for defects shall not apply in the event of insignificant deviations from the agreed quality, in the event of only insignificant impairment of usability, in the event of natural wear and tear or damage that occurs after the transfer of risk as a result of incorrect or negligent handling, excessive use or due to special external influences that are not assumed under the contract.
Claims by the Client for expenses required for the purpose of subsequent performance, in particular transport, travel, labor and material costs, are excluded to the extent that the expenses increase because the object of the delivery was subsequently moved to a location other than the Client’s branch.
The client’s recourse claims against F&S Elementebau pursuant to Section 478 of the German Civil Code (BGB) only exist to the extent that the client has not entered into any agreements with its customer that go beyond the statutory warranty claims. Furthermore, the scope of the client’s recourse claims against the supplier pursuant to Section 478 II of the German Civil Code (BGB) is governed by what was stated under the aforementioned clause.
For claims for damages, clause 8 shall apply. Any further claims by the client against F&S Elementebau and its vicarious agents due to a material defect or claims other than those regulated therein are excluded.
The client must immediately notify F&S Elenmentebau of any material defects in writing.

8. Claims for damages

Claims by the client for damages and reimbursement of expenses – regardless of the legal basis – in particular due to breach of obligations arising from the contractual relationship and tortious acts are excluded.

This does not apply to mandatory liability, e.g., under the Product Liability Act in cases of intent, gross negligence, and injury to life, limb, or health due to the breach of essential contractual obligations. However, the claim for damages for the breach of essential contractual obligations is limited to the foreseeable damage typical for the contract, unless intent or gross negligence is present or liability is incurred due to injury to life, limb, or health. The above provision does not alter the burden of proof to the detriment of the customer. To the extent the customer is entitled to claims for damages under this provision, these shall expire upon expiration of the limitation period applicable to claims for material defects.

For claims for damages under the Product Liability Act, the statutory limitation periods apply.

If delivery is impossible, the client is entitled to claim damages, unless F&S Elementebau is not responsible for the impossibility. The client’s claim for damages is limited to 10% of the value of that portion of the delivery that cannot be completed in accordance with the contract due to the impossibility. This limitation does not apply to mandatory liability in cases of intent, gross negligence, or injury to life, limb, or health. This does not involve a change in the burden of proof to the detriment of the client.

The client’s right to withdraw from the contract remains unaffected.

If unforeseeable events such as strikes, lockouts, operational disruptions, etc. significantly change the economic significance or content of the contractual service or have a significant impact on the operations of F&S Elementebau, the contract will be appropriately adjusted in good faith.

9. Place of jurisdiction and applicable law

If the customer is a merchant, the sole place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is the Heilbronn Regional Court. F&S Elementebau is also entitled to bring legal action at the customer’s registered office.
The legal relationships in connection with this contract are governed by German substantive law, excluding the UN Convention on Contracts for the International Sale of Goods (CISG).

10. Severability Clause

This agreement remains binding in its remaining parts even if individual provisions are legally invalid. This does not apply if adhering to the agreement would represent an unreasonable hardship for one of the parties.

Status: 08/2009