General terms and conditions of FZH Engineering GmbH

I. General

  1. All our present and future deliveries and services, including consultancy, proposals and other ancillary services shall be rendered exclusively on the basis of the following General Terms and Conditions. The amendment or exclusion of the following conditions shall become effective only with our express written consent. Any conflicting General Terms and Conditions on the part of the Client are herewith expressly excluded.
  2. Our quotations are subject to alteration and non-binding. Warranties of features, ancillary agreements and amendments of our employees shall not be binding until confirmed in writing.
  3. Dimensions, surfaces, weight and performance data as well as illustrations and drawings are only binding for the construction of the products if this has been expressly confirmed in writing. References to standards or works inspection certificates shall not be deemed to constitute assurances of properties.

II. Prices

  1. The prices shall be understood ex-works or warehouse, plus freight and value added tax. The costs in connection with the execution of the contract, such as insurance, packaging and delivery costs are charged separately.
  2. Unintentional additional expenses arising from the execution of the delivery, and for which no price surcharges have been agreed, shall be borne by the Customer, unless we are responsible for their occurrence.

III. Payment terms

  1. Our invoices are payable strictly net, that is without discount deduction, immediately upon receipt of the goods unless extension of the payment period or allowance of a discount have been expressly agreed.
  2. If the payment terms are not met, we shall be entitled to bill interest on arrears at the rate charged to us by the bank for current account overdrafts, but at a minimum of 4% above the Germany’s Central Bank’s discount rate plus VAT, unless the Customer can substantiate lower damages. We reserve the right to claim further damages.
  3. When payment is made by check, payment is only deemed to have been made when the check is collected.
  4. Bills of exchange shall be accepted only with prior agreement; but in any event only subject to the possibility of discounting and only for the purpose of payment. The Customer shall bear the costs of discounting and collection.
  5. A right of set-off and/or right of retention of the Customer is excluded; in particular, a notice of defects does not release the Customer from his duty to meet payment obligations.
  6. All our claims shall be due and payable immediately, regardless of the maturity date of any received and credited bills of exchange, if the terms of payment are not adhered to and if we become aware of circumstances which in our opinion are capable of impairing the Customer’s creditworthiness. In this case we would be entitled to make still outstanding deliveries only against advance payments or the provision of security. If the Customer is in default of payment, we will moreover be entitled to rescind the contract and to demand compensation for non-fulfillment thereof. In addition, we shall be entitled to take back the goods and to enter the Customer’s premises for this purpose. We may also prohibit the resale, processing and removal of the delivered goods.

IV. Delivery deadlines and dates

  1. Delivery deadlines shall commence with the date of our order confirmation but not before complete clarification of all necessary details of the order and the timely fulfillment of all of the Customer’s obligations e.g. the provision of official certifications, letters of credit and payment guarantees or payment of installments.
  2. Delivery deadlines and dates refer to the date of dispatch ex works or the warehouse. These shall be considered to be met with the advice of readiness for dispatch, if the goods cannot be dispatched timely for reasons, we are not responsible for. We shall not be responsible for delayed or omitted deliveries due to causes for which our pre-suppliers are responsible.
  3. Failure to adhere to delivery dates due to cases of force majeure or the occurrence of other unforeseen events does not entitle the Customer to bring a default action against us or rescind the contract. The delivery deadline shall be suitably extended by the term of delay. Force majeure includes circumstances which considerably impede delivery or make delivery impossible, e.g., monetary, trade policy or other sovereign actions, strikes, lockouts, disruptions of operation (e.g. fire, machinery breakdown, raw materials or energy deficiency) and blockage of traffic routes, regardless of whether these circumstances occur at our location, at the factory or happen to a sub-supplier.
  4. The delivery deadlines are extended – regardless of our rights arising from the default of the Customer – for the period by which the Customer is in default with its obligations to us from this contract or other contracts.
  5. In the event of default, the Customer can only claim damages for non-performance after an extension period without result, if we or our vicarious agents have caused the damage deliberately or through gross negligence. The extended liability of § 287 BGB is excluded.

V. Shipping and transfer of risk, partial delivery

  1. Unless otherwise specified, we shall determine the route and mode of dispatch as well as the forwarder and carrier.
  2. Goods which have been correctly notified as being ready for delivery shall be collected without delay; otherwise we may either deliver the goods at the expense and the risk of the Customer or we may at our own discretion store the goods and invoice such immediately.
  3. The risk shall pass to the Customer upon transfer of the goods to a forwarder or carrier, but at the latest when the goods have left the warehouse or the delivering works. Should the delivery be delayed by the Customer, the risk is passed on to the Customer from the day on which the goods are ready for dispatch.
  4. We are entitled to make partial deliveries within a reasonable scope. Partial deliveries are deemed to constitute independent transactions. Industry-standard over- and under-deliveries of the agreed quantity are permissible.
  5. Insurance against shipment damage is only arranged at the Customer’s request and at his expense.

VI. Retention of title

  1. All delivered goods remain our property (reserved goods) until all outstanding accounts, irrespective of the legal basis, including future or contingent claims and those from contracts entered into concurrently and thereafter, have been settled. This also applies if payments on specifically designated claims are made. When we accept bills of exchange or checks, payment shall only be deemed to have been made once they have been cashed.
  2. The Customer is entitled to resell the goods in question as part of the normal course of business, provided that the Customer meets his obligations to us under this contract or other contracts on time.
  3. If the Customer resells the reserved goods, he shall assign to us as of now and until the complete fulfillment of all his liabilities to us, all and any claims arising from the resale, including all ancillary rights against his sub-purchasers to us. Should the reserved goods be sold by the Customer together with other goods not owned by us – regardless of their condition – the assignment of the purchase price claim to us shall be deemed agreed only to the amount of the invoice for the reserved goods which were delivered by us and which together with the other goods are the subject matter of the present contract of purchase or part of the object of purchase.
  4. The same shall apply to those Customer claims against a third party that accrue by processing the goods alone or together such that the resulting product by virtue of law becomes the property of this third party (e.g. §946 BGB) in the ordinary course of business.
  5. The Customer is entitled to the collection of claims from the resale of the goods, despite the above agreed assignment. Our right of collection shall remain unaffected by the Customer’s right of collection. We will, however, refrain from collecting any claims ourselves as long as the Customer meets his payment obligations properly. The Customer is obliged at our request to inform us of the debtors of the claims assigned. The Customer is granted the right to inform them of said assignment.
  6. Handling or processing of the reserved goods are carried out for us as manufacturer within the meaning of § 950 BGB without obliging us. Hence, we acquire the property of the intermediate and finished goods. The Customer or the respective owners are only the custodians of the goods for us. Liabilities and claims for damages may not accrue to the Customer from the handling and processing. The handled or processed goods serve as our security, and in any event equal to the amount of the price of the reserved goods invoiced to the Customer. Should the reserved goods be processed together with other products which do not belong to us, we acquire the co-ownership of the new products in proportion of the value of the reserved goods to the other products at the time of processing. The new product shall be deemed to be reserved goods within the meaning of these Terms and Conditions and subject to the same rules. In the event that the reserved goods are mixed or blended with other goods, our ownership shall remain according to §§ 947, 948 BGB, i.e. this will become a co-ownership – apart from that, the above provisions regarding the handling and processing apply analogously.
  7. The retention of title in accordance with the above conditions shall also remain in force when individual claims of the Customer have been incorporated into a running account and the balance is drawn and recognized.
  8. If the value of the goods, which have remained in our ownership according to these regulations, exceeds the amount of an outstanding invoice by more than 25%, then we shall on request of the Customer give up his ownership to the extent and according to his choice in so far as the value of the goods exceeds 125% of the residual claim.

VII. Notice of defects and warranty

For any defects of the goods and for the lack of assured properties, we grant warranty according to the following rules:

  1. Provided that our pre-supplier provides a warranty to the Customer, our acceptance of warranty is excluded.
  2. The contractual condition of the goods shall be determined at the time of delivery to the forwarder or carrier, at the latest the time when the goods leave the delivering works or the warehouse.
  3. The Customer must inspect the goods immediately after delivery with reasonable thoroughness under the given circumstances: any defects thus ascertainable must be reported in writing without delay, at the latest after 8 days from the date of delivery. This also applies to the lack of assured properties. Defects, which can even after careful inspection not be discovered within this time period, shall be notified to us in writing immediately on discovery, at the latest before expiry of the warranty period. If defects are discovered, the use of the goods has to be discontinued at once. After the performance of an agreed acceptance of the goods by the Customer, notices of defects, which were detectable by the agreed form of acceptance, are excluded.
  4. If a justified notice of defects is made in due time, we provide guarantee in that we either repair or at our choice re-deliver those components which have become unusable within 6 months from the date of delivery as a result of a circumstance prior to the transfer of risk – in particular due to faulty design, poor building materials or defective execution. Alternatively, we are also entitled to compensate the reduced value.
  5. In case we do not fulfill our obligation to rectify defects or to replace defective parts or if we do not perform such obligations in accordance with the contract, the Customer shall be entitled to rescind the contract or demand the reduction of the remuneration.
  6. If the Customer does not immediately give us the opportunity to verify the defect, and, in particular, fails to furnish the defective goods or samples immediately upon our request, no claims for defects can be requested.
  7. Claims for defects shall be subject to a limitation period of 3 months at the latest after the written refusal of the claim of defects by us. Our entering into negotiations about any complaints does not mean that we waive our right to object that the notice of defects was not submitted in good time, was unfounded or was otherwise inadequate.
  8. Further claims shall be excluded; this applies in particular to claims for damages that have not occurred on the goods as such (consequential damages) unless the Customer should be protected by assured properties against this particular type of damage.
  9. The above terms shall also apply for the delivery of goods other than contractually agreed goods.

VIII. Liability / limitation

  1. Unless otherwise regulated in these Terms and Conditions, we shall be liable for any damage due to infringement of contractual or non-contractual obligations only in case of intent or gross negligence. Our liability does not encompass – except in cases of intent – damage that is not typically expected in the specific transaction or for which the Customer has insurance or can otherwise be insured.
  2. All claims against us, regardless of the legal reason, expire one year after transfer of risk to the Customer, unless the period of limitation stipulated in these Terms and Conditions is shorter.

IX. Place of performance, place of jurisdiction and applicable law

The place of performance is the designated headquarters of the Seller. Jurisdiction is the District Court Prüm, or the higher Regional Court of Trier. We shall, however, also be entitled to take legal proceedings against the Customer at his place of jurisdiction. Any and all legal relationships between us and the Customer are exclusively governed by the laws of the Federal Republic of Germany.

X. Ineffectiveness

In the event that individual provisions of these Terms and Conditions are ineffective, then the validity of the other provisions shall not be affected.