General Terms and Conditions
TERMS OF DELIVERY AND PAYMENT
(For use with entrepreneurs, legal entities under public law or special funds under public law)
- FAUTH delivers exclusively under these conditions. Terms and conditions of the customer are not binding for FAUTH, even if they constitute the basis of the order and FAUTH has not made an explicit objection to their content. Additional agreements shall only be valid if confirmed in the form of a written agreement.
- An order shall only be valid if it is confirmed by FAUTH or immediately executed by FAUTH.
- The contract shall remain obligatory even if individual points of its terms and conditions are declared invalid.
II. Delivery Time
- Information about delivery times (periods and deadlines) are only binding, if they have been agreed in a written form. Delivery periods begin with the date of the order confirmation, but only when all details of the execution have been clarified and both parties agree on all conditions of the contract.
- An accepted delivery time is fulfilled if the goods have left the factory/warehouse at the agreed date or, in the case of a transport order, the customer has been notified that the goods are ready for dispatch.
- Force majeure, in particular due to mobilisation, war, riot, strike, lockout, or the occurrence of unforeseen obstacles beyond FAUTH's control, shall extend the delivery period appropriately, even if they occur during a delay in delivery. The same shall apply if official permits or other approvals or information required from the customer for the execution of the delivery are not received on time; the same shall apply in the event of any subsequent changes to the order.
- In the event of a delivery delay, the Purchaser shall be entitled to withdraw from the contract after the unsuccessful expiry of a period of extension of at least 20 days set in written form, unless the dispatch is postponed at the request of the customer or due to the customer's failure to comply with obligations under the contract. If FAUTH is in a state of delay due to its own fault, the customer may, if he or she can prove that he has suffered damage as a result of the delay, demand compensation of no more than 0.5 per cent of the gross order amount in arrears for each full week of delay, but no more than a total of 5 per cent of the gross order amount in arrears. Any other or further claims for compensation by the customer shall be excluded in cases of delayed delivery, even after the expiry of a grace period granted to FAUTH, unless the delay is due to intent or gross negligence on the part of FAUTH. The right to withdraw from the contract after the fruitless expiry of a period of grace granted to FAUTH shall remain unaffected.
III. Shipment, Transfer of Risk
- The risk shall pass to the customer upon dispatch of the goods, even if carriage paid performance has been agreed. If the dispatch is delayed through the fault of the customer, the risk is already transferred to the customer from the day of readiness for dispatch.
- The route and type of transport shall be determined by FAUTH, unless otherwise specified by the customer.
IV. Prices and Payments
- The prices in commercial transactions with entrepreneurs are, unless otherwise stated, plus the value added tax applicable on the day of invoicing. The prices are ex works excluding packaging, unless otherwise agreed.
- Terms of payment require a written agreement. In the absence of other agreements, invoice amounts are due immediately and payable without deduction.
- The customer can only charge up against such claims which are undisputed or legally binding.Furthermore, a right of retention may only be exercised if the counterclaim of the customer is based on the same contractual relationship.
V. Retention of Ownership
- Ownership of all deliveries remains with FAUTH until the purchase price has been paid and all payments arising from the delivery contract and the entire business relationship, including interest and costs of any legal action, have been received. The delivered goods shall remain the property of FAUTH. The customer may neither pledge the delivery item nor assign it as security; it must store and insure it properly. The customer shall inform FAUTH immediately in the event of seizure, confiscation or other disposition by third parties.
- If the customer processes the goods subject to FAUTH's reservation of title into a new item, the processing shall be carried out on behalf of FAUTH, without any obligation on FAUTH's part; the new item shall become the property of FAUTH. In the event of processing together with goods not belonging to FAUTH, FAUTH shall acquire co-ownership of the new item in proportion to the value of the goods subject to FAUTH's reservation of title to the other goods at the time of processing. If goods subject to reservation of title are combined, mixed or blended with goods not belonging to FAUTH in accordance with §§ 947, 948 BGB, FAUTH shall become co-owner in accordance with the statutory provisions. If the customer acquires sole ownership by combining, mixing or blending, he hereby assigns co-ownership to FAUTH in proportion to the value of the goods subject to reservation of title to the other goods at the time of combining, mixing or blending. In such cases, the customer shall store free of charge the item owned or co-owned by FAUTH, which shall also be deemed to be goods subject to reservation of title within the meaning of the following provisions.
- If goods subject to FAUTH's ownership or co-ownership are installed by the customer as an essential component, the customer hereby assigns to FAUTH the right to claim compensation from the third party or the party it concerns in the amount of the value of the goods subject to FAUTH's ownership or co-ownership, with all ancillary rights having priority over the rest; FAUTH accepts the assignment. The aforementioned provisions shall apply accordingly.
- The customer is only entitled and authorised to resell, use or install, mix, combine or blend the reserved goods in the normal and orderly course of business and only under the condition that the claim within the meaning of the mentioned paragraphs is actually transferred to FAUTH. The customer shall not be entitled to any other disposal of the reserved goods, in particular pledging or assignment as security. He shall be obliged to secure FAUTH's rights in the event of resale of the goods subject to reservation of title to the amount of the purchase price of the goods.
- FAUTH authorises the customer, subject to revocation, to collect the claims assigned in accordance with the above paragraphs. FAUTH will not use its own collection authority as long as the customer meets its payment obligations. Upon FAUTH's request, the customer shall name the debtors of the assigned claims and notify these of the assignment; FAUTH is authorised to notify the debtors of the assignment itself.
- If the amount of the securities granted exceeds the claims by more than 10 percent, FAUTH shall be obliged to reassign or release them at the request of the customer.
VI. Warranty and Responsibility for Deficiency
- The inspection and complaint obligations of § 377 HGB apply to merchants without restriction. In addition, all obvious defects, shortfalls or wrong deliveries must be reported in writing immediately, at the latest within 7 working days after delivery, but in any case before processing, mixing or blending. At the same time as the complaint, a sample of the goods complained about shall be sent to FAUTH, stating the order number and date of the order as well as the delivery date and container number. FAUTH must be given the opportunity to inspect the goods under complaint.
- The warranty shall be granted, at FAUTH's option, either by the correction of the defect or by the delivery of a defect-free item. The customer shall grant FAUTH reasonable time and opportunity for subsequent performance. Should FAUTH allow a reasonable period of grace to elapse without remedying the defect, or should FAUTH unjustifiably refuse subsequent performance, the customer shall have the right, at its option, to withdraw from the contract or to reduce the agreed remuneration. Excluded from warranty and liability shall be such damage as is due to natural wear and tear, as well as damage occurring after the transfer of risk as a result of faulty or negligent handling, excessive strain, and unsuitable equipment.
- Deviations within the DIN standard tolerances or other technical regulations do not constitute a material defect; a reference to DIN standards or other technical regulations shall always include a more detailed description of the goods and shall not constitute a warranty or guarantee by FAUTH, unless such a warranty or guarantee has been expressly agreed.
- Further claims of the customer against FAUTH and its vicarious agents are excluded, in particular for compensation for damage not occurring to the delivered goods themselves. The above limitation of liability shall not apply in cases of intent, gross negligence, or the lack of guaranteed properties, as well as in cases of injury to life, body, or health. If FAUTH negligently breaches a material contractual obligation, the obligation to pay compensation for damage to property or personal injury shall be limited to the amount covered by FAUTH's liability insurance; FAUTH shall be prepared to provide the customer with information on the amount covered upon request. The above mentioned limitations and exclusions of claims and liability of this and of clauses VI. and VII. do not affect claims of the customer under § 439, section 3 BGB (reimbursement of installation and removal costs) and § 635, section 2 BGB, and recourse claims under § 445 a BGB.
- The above provision shall not apply to claims under the Product Liability Act and claims based on initial inability or justifiable impossibility. The limitations of liability and exclusions of clauses VI. and VII. of these terms and conditions shall also apply accordingly to such claims which have arisen as a result of advice, information, details in printed material or the breach of secondary contractual obligations which occurred before or after the conclusion of the contract.
- If FAUTH's liability is excluded or limited, this shall also apply to the liability of the contractor's employees, workers, staff, representatives and representatives and agents.
VIII. Miscellaneous Terms and Conditions
- If the customer is a merchant, a legal entity under public law or a special fund under public law, the place of performance and jurisdiction shall be the court responsible for FAUTH's registered office. FAUTH shall also be entitled to bring an action at the principal place of business of the customer. The law of the Federal Republic of Germany shall apply, to the exclusion of the United Nations Convention on the International Sale of Goods (CISG) and the referral rules of private international law.