General Terms and Conditions

  • Sta­tus as at 23 June 2017
1.  General information

The fol­lowing gene­ral terms and con­di­ti­ons shall govern all offers and order accep­t­an­ces as well as all deli­ve­ries made by us. They also apply to all future busi­ness rela­ti­ons bet­ween us and the­purcha­ser. Any terms and con­di­ti­ons other than these, in par­ti­cu­lar the purchaser’s terms of purchase, shall not apply, even if they are not expressly rejec­ted in ano­t­her form. Upon accep­t­ance ofthe goods at the latest, the purcha­ser renoun­ces the app­li­ca­tion of its own busi­ness con­di­ti­ons, even if they claim ex- clu­si­vity. Ver­bal agree­ments or war­ran­ties are inva­lid without our writ­ten­con­fir­ma­tion. Your con- tract part­ner is Formen­tech­nik Bay­reuth GmbH, Ritter-​von-​Eitzenberger-​Straße 14, 95448 Bay­reuth, Ger­many, repre­sen­ted by the mana­ging direc­tors Mr. Wolf­gang­Schlä­ger and Mr. Jür­gen Zieg­ler. We are recor­ded in the com­mer­cial regis­ter of the regis­try court Bay­reuth under the num­ber HRB 1140. These Gene­ral Terms and Con­di­ti­ons apply toen­tre­pre­neurs. Accord­ing to sec­tion 14 of the Ger­man Civil Code (Bür­ger­li­ches Gesetz­buch, BGB), an entre­pre­neur is a natu­ral or legal per­son or a partner- ship with legal per­so­na­lity who orwhich, when ent­e­ring into a legal tran­sac­tion, acts in exer­cise of his or its trade, busi­ness or pro­fes­sion.

2.  Prices and conclusion of contract

(1)  As long and inso­far as we have not agreed other­wise with our cus­to­mer, our pri­ces are net in Euro, always ex works, exclu­ding pack­a­ging, plus the then app­li­ca­ble value added tax.

(2)  If no fixed price agree­ment has been made, we reserve the right to carry out rea­son­able price chan­ges resul­ting from chan­ges in wage, mate­rial and dis­tri­bu­tion costs for deli­ve­ries thatare ef- fec­ted three or more mon­ths after con­clu­sion of the con­tract.

(3)  Fol­lowing a request from our cus­to­mer, we pre­pare a non-​binding offer and sub­mit it to the cus- tomer. The cus­to­mer may then accept the offer in wri­ting. As long and inso­far as we have sub­mit­ted atar­get price offer, our cus­to­mer can­not yet place an order on this offer because, in this case, a pre- limi­nary tech­ni­cal cla­ri­fi­ca­tion is necessary that leads to a revi­sed offer.

3.  Technical changes

(1)  Until deli­very, we reserve the right to make tech­ni­cal chan­ges to the pro­ducts sold by us which incre­ase or pre­serve their value and do not degrade their func­tion.

(2)  Unless expli­ci­tly agreed other­wise, we shall be enti­t­led to deter­mine tech­ni­cal per­for­mance char- acte­ris­tics or dimen­si­ons of deli­ve­ries wit­hin the tole­ran­ces cus­to­mary in the trade. The­in­clu­sion of such tole­ran­ces is con­si­de­red agreed upon.

(3)  In the case of chan­ges that are necessary or reques­ted by our cus­to­mer, or in the case of modifi- cati­ons to tech­ni­cal and func­tio­nal spe­ci­fi­ca­ti­ons, drawings, data and parts lists, we shall­cal­cu­late the addi­tio­nal expen­dit­ure and inform the cus­to­mer about the pos­si­ble addi­tio­nal char­ges as well as a pos­si­ble delay in deli­very.

4.  Technical specifications of the customer

(1)  Tech­ni­cal docu­ments which are sent to us by our cus­to­mer are mar­ked by us as order data on the basis of the order num­ber and form part of the order. We will roughly check this infor­ma­tion forac- curacy and com­ple­teness, but we shall assume no lia­bi­lity for docu­ments which are not trans­mit­ted cor­rectly or com­ple­tely.

(2)  We shall take the tech­ni­cal data and/​or pro­duct descrip­ti­ons trans­mit­ted to us by our cus­to­mer as well as the pro­duct cha­rac­te­ris­tics as the basis for the manu­fac­ture and deli­very of the­con­tract prod- ucts.

(3)  Inso­far as we have to deli­ver pro­ducts based on drawings and/​or using parts pro­vi­ded by the pur- cha­ser, the lat­ter must gua­ran­tee that this does not infringe pro­prie­tary rights of third par­ties. The purcha­ser must notify us of exis­ting pro­prie­tary rights and any other rights known to him. The pur- cha­ser shall indem­nify us for all claims of third par­ties and shall com­pen­sate us for the damage cau­sed to us.

(4)  As long and inso­far that we have manu­fac­tu­red tools accord­ing to the spe­ci­fi­ca­ti­ons of our cus- tomers, that these tools have been accep­ted and that the mea­su­ring sam­ples have beenmanufac- tured, the mea­su­re­ment has been car­ried out and the tool has been cor­rec­ted, objec­tions and com- plaints can only be rai­sed if a gua­ran­teed out­put quan­tity has been defi­ned in the­con­tract docu- ments and this quan­tity has not yet been reached, or if the cus­to­mer can prove that the defect has exis­ted before the accep­t­ance. As long and inso­far the alle­ged defect rela­tes to ashort­fall in the gua­ran­teed out­put quan­tity, the cus­to­mer shall bear the bur­den of proof with regard to the cur­rent out­put quan­tity.

5.  Call-​off orders

(1)  In the case of pla­ced call-​off orders, we shall be enti­t­led to demand a bin­ding state­ment no later than three mon­ths after the issu­ance and exis­tence of an order con­fir­ma­tion, pro­vi­ded that the com- ple­tion or accep­t­ance dates are not fixed.

(2)  In the case of pla­ced call-​off orders, we shall be enti­t­led to deli­ver and invoice the total order quan­tity no later than twelve mon­ths after the order has been pla­ced, unless expli­ci­tly agreedother- wise.

(3)  Inso­far as the purcha­ser does not com­ply with this request wit­hin a period of three weeks after rece­ipt, we are enti­t­led to set a final dead­line of at least two weeks and to with­draw from the con- tract and/​or to claim dama­ges for non-​performance after expiry of the dead­line.

6.  Payment arrangements

(1)  The terms of pay­ment are estab­lis­hed in the writ­ten order docu­ments. Unless other­wise agreed, pay­ments shall be due immedia­tely upon rece­ipt of the invoice, strictly net without­de­duc­tions.

(2)  If the invoice amount is not paid by our cus­to­mer wit­hin ten days from the invoice date, the cus- tomer is in default. From the start of the default, we shall be enti­t­led to demand default inte­rest at the rate of nine per­cen­tage points above the base inte­rest rate of the Euro­pean Cen­tral Bank. We ex- pressly reserve the right to claim hig­her dama­ges due to a delay in pay­ment.

(3)  In the event of a delay in pay­ment by the purcha­ser, we may also demand the immediate pay- ment of all out­stan­ding claims irre­spec­tive of the agreed pay­ment terms and/​or with­draw from all exis­ting deli­very con­tracts – inclu­ding those for which there are no pay­ment delays – or, at our choice, claim dama­ges for non-​performance.

(4)  We shall not be obli­ged to accept bills of exchange or checks as pay­ment. If they are accep­ted, this is done only on account of per­for­mance.

(5)  As a mat­ter of principle, all pay­ments shall be credi­ted to the oldest debt, regard­less of any other terms of the buyer. Par­tial deli­ve­ries and par­tial ser­vices may be invoi­ced sepa­r­ately.

7.  Defense of uncertainty

(1)  We shall be enti­t­led to refuse per­for­mance if, after con­clu­sion of the con­tract, it beco­mes appar- ent to us that our enti­t­le­ment to con­si­de­ra­tion is jeo­par­di­zed by the purchaser’s ina­bi­lity to per­form. This right to refuse per­for­mance is not app­li­ca­ble if con­si­de­ra­tion is ren­de­red or secu­rity is given for it.

(2)  We shall also be enti­t­led to spe­cify a rea­son­able period in which the purcha­ser must, at his choice, ren­der con­si­de­ra­tion or pro­vide secu­rity reci­pro­cally and simul­ta­ne­ously against perfor- mance. If this period ends without result, we shall be enti­t­led to revoke the con­tract.

8.  Transfer of risks/​shipping

(1)  If the goods are sent to the purcha­ser at his request, the risk of acci­den­tal loss or acci­den­tal dete- rio­ra­tion of the goods shall pass to the purcha­ser upon dis­patch, but not later than upon lea­ving our plant/​warehouse. This app­lies regard­less of whe­ther the goods are ship­ped from the place of perfor- mance and regard­less of which party bears the freight char­ges. The purchased/​orderedgoods are only insu­red at the writ­ten request of the purcha­ser; in such a case, our purcha­ser bears the costs and has to com­mu­ni­cate the risks to be insu­red.

(2)  Unless other­wise spe­ci­fied in wri­ting, we choose the mode and route of trans­port as well as the pack­a­ging.

9.  Terms of Delivery

(1)  Deli­very times are spe­ci­fied by us to our best know­ledge and are not bin­ding; nevertheless, we will endea­vor to com­ply with them. In the case of events of force majeure, break­downs, lack of work- ers, energy or raw mate­rial, strikes or in the case of any other events that are bey­ond our con­trol, the deli­very date shall be post­po­ned by the dura­tion of the hin­drance and its effects. If no bin­ding dead­lines have been expli­ci­tly agreed, the deli­very shall be due at the ear­liest one month after expiry of the non-​binding deli­very date.

(2)  We are allo­wed to make par­tial deli­ve­ries at any time. Rea­son­able devia­ti­ons from orde­red quan- tities by up to plus/​minus ten per­cent are per­mis­si­ble. The purchase price will be adjustedaccord- ingly.

(3)  In the event that we are cul­p­a­bly in delay with the per­for­mance of our ser­vices, our cus­to­mer shall be enti­t­led to the rele­vant legal rights.

10. Default in acceptance

(1)  If the purcha­ser does not accept indi­vi­dual deli­ve­ries or par­tial deli­ve­ries or refu­ses to accept them, we may set the purcha­ser an appro­priate dead­line for accep­t­ance. If the cus­to­mer then does not accept the goods wit­hin the set time limit, we shall be enti­t­led to with­draw from the con­tract or to claim dama­ges for non-​performance. If the purcha­ser defaults in accep­t­ance, the risk ofac­ci­den­tal loss or acci­den­tal dete­rio­ra­tion of the sales item shall pass to the purcha­ser at the time at which it defaults in accep­t­ance or in pay­ment.

(2)  In the case just descri­bed, the purcha­ser shall com­pen­sate us for the ent­ire damage, inclu­ding trans­port costs. In this event, we may eit­her choose to prove our damage or – without proof – to claim as com­pen­sa­tion a flat rate of 30 per­cent of the net value of the non-​accepted deli­very plus the cash expen­ses incur­red to us. The amount of com­pen­sa­tion shall be fixed at a hig­her or lower rate if we prove that the damage has been hig­her or the cus­to­mer demons­tra­tes that it has been less.

11. Retention of title

(1)  We shall retain title to all goods deli­ve­red by us until full pay­ment of all claims ari­sing from the deli­very con­tract has been recei­ved. This shall also apply to all future deli­ve­ries, even if we do not con­stantly and expressly refer to this fact. We shall be enti­t­led to take back the pro­duct deli­ve­red by us if the purcha­ser acts in bre­ach of con­tract.

(2)  As long as owners­hip has not been trans­fer­red to it, our purcha­ser is obli­ged to treat the pro­duct deli­ve­red by us with care. In par­ti­cu­lar, it is obli­ged to insure it suf­fi­ci­ently at the new value at its own expense against theft, fire and water damage. If any main­ten­ance or inspec­tion work is requi­red, the purcha­ser shall per­form such work in due time at its own expense. As long as owners­hip has­not been trans­fer­red to it, the purcha­ser must notify us immedia­tely in wri­ting if the deli­ve­red item is sei­zed or sub­jec­ted to other inter­ven­ti­ons by third par­ties. Inso­far as the third party is not able to re- imburse us for the judi­cial and extra­ju­di­cial costs of a lawsuit pur­suant to sec­tion 771 of the Ger­man Code of Civil Pro­ce­dure (Zivil­pro­zess­ord­nung, ZPO), the purcha­ser shall be liable for the loss wein­cur.

(3)  The purcha­ser shall be aut­ho­ri­zed to resell the goods sub­ject to reten­tion of title as part of its or- dinary com­mer­cial ope­ra­ti­ons. It shall assign to us right now, in the amount of the final invoice amount agreed with us (inclu­ding value added tax), the receiva­bles against the buyer gene­ra­ted by the resale of the goods sub­ject to reten­tion of title. This assign­ment shall apply regard­less ofwhe­ther the con­tract pro­duct has been resold without or after pro­ces­sing. Our purcha­ser remains aut­ho­ri­zed to collect the receiva­bles even after the assign­ment. Our aut­ho­rity to collect the receiva­bles our- sel­ves is not affec­ted by this. We shall, howe­ver, not collect the receiva­bles as long as our purcha­ser meets all exis­ting pay­ment obli­ga­ti­ons to us from the reve­nues it recei­ves, as long as it is not in de- fault in pay­ment and as long as, in par­ti­cu­lar, no app­li­ca­tion for ope­ning insol­vency pro­cee­dings has been filed or pay­ments are not sus­pen­ded.

(4)  Any pro­ces­sing, tre­at­ment or remo­de­ling of the con­tract pro­duct by our purcha­ser is always car- ried out in our name and on our behalf. In this case, the rever­sio­nary inte­rest of the purcha­ser in the con­tract pro­duct will con­ti­nue in the trans­for­med item. If the con­tract pro­duct is pro­ces­sed with other items not belon­ging to us, we acquire co-​ownership of the new item in the ratio of the objec- tive­va­lue of our con­tract pro­duct to the other pro­ces­sed items at the time of pro­ces­sing. The same shall apply in the case of inter­mix­ture. If the inter­mix­ture takes place in such a way that the item of the­purcha­ser is to be regar­ded as the main item, it is agreed that the purcha­ser trans­fers propor- tio­nate co-​ownership to us and shall hold the resul­ting sole or co-​ownership for us. In order to secure our­re­ceiva­bles against the purcha­ser, the lat­ter also assigns those receiva­bles to us which accrue to it by the com­bi­na­tion of the goods sub­ject to reten­tion of title with real estate against a third party. We accept this assign­ment right now.

(5)  We under­take to release the secu­ri­ties that are due to us when the purcha­ser so requests inso­far as and as long as their value exceeds the receiva­bles to be secu­red by more than 20 per­cent.

12. Liability for defects

(1)  A spe­cial pur­pose of use for the sub­ject mat­ter of the con­tract shall only be deemed to have been agreed if an express writ­ten agree­ment is con­clu­ded bet­ween us and the purcha­ser.

(2)  If such an agree­ment has not been made, we shall gua­ran­tee that the sub­ject mat­ter of the con- tract is sui­ta­ble for the cus­to­mary use and its qua­lity is usual in things of the same kind and the buyer may expect this qua­lity in view of the type of the thing.

(3)  Pro­per­ties are only assu­red by us if we con­firm them in wri­ting. A mere refe­rence to tech­ni­cal stan­dards solely ser­ves as a more detailed pro­duct and ser­vice descrip­tion and does not­con­sti­tute an agree­ment on the sui­ta­bi­lity of the goods which goes bey­ond the cus­to­mary use of the sub­ject mat­ter of the con­tract.

(4)  The war­ranty claims of the purcha­ser in gene­ral pre­sup­pose that the lat­ter has duly met his obli- gati­ons to inspect and report the defect accord­ing to sec­tion 377 of the Ger­man­Com­mer­cial Code (Han­dels­ge­setz­buch, HGB). Hid­den defects must be repor­ted to us in wri­ting without delay, but no later than wit­hin five days after their dis­co­very.

(5)  The purcha­ser shall not be enti­t­led to pro­cess goods that have been repor­ted as defec­tive unless we have given our prior con­sent. In the event of fur­ther pro­ces­sing, all claims which arise due tothe repor­ted defects or as a result of fur­ther pro­ces­sing are exclu­ded.

(6)  In any case of a pro­perly repor­ted defect or any other bre­ach of duty for which we can be held respon­si­ble, we shall be enti­t­led and obli­ged to cure the repor­ted defect or bre­ach of duty by subse- quent per­for­mance. The purcha­ser is only then enti­t­led to demand a reduc­tion of price or to rescind the con­tract or to claim dama­ges in lieu of per­for­mance when two attempts at remedy have fai­led des­pite having been gran­ted an appro­priate grace period. We shall only be obli­ged to pro­vide com- pen­sa­tion for dama­ges under the con­di­tion of sen­tence 2.

(7)  Claims for defects become statute-​barred in twelve mon­ths after deli­very of the pro­ducts to our purcha­ser. The sta­tu­tory limi­ta­tion period shall apply to damage claims in the case of intent and gross negli­gence and in the case of inju­ries to life, limb and health which are based on an inten­tio­nal or negli­gent bre­ach of duty on the part of the user. Inso­far as the law sti­pu­la­tes lon­ger limi­ta­tion pe- riods accord­ing to sec­tion 438 para­graph 1 sen­tence 2 of the Ger­man Civil Code (buil­dings and things for buil­dings), sec­tion 479 para­graph 1 of the Ger­man Civil Code (recourse claims) andsec­tion 634a para­graph 1 sen­tence 2 of the Ger­man Civil Code (buil­ding defects), these limi­ta­tion peri­ods apply.

(8)  Claims for defects shall not be per­mit­ted in case of an insi­gni­fi­cant devia­tion from the agreed qua­lity, in case of an insi­gni­fi­cant impairment of usa­bi­lity, in case of natu­ral wear and tear and in the event of dama­ges which, after the trans­fer of risks, result from faulty or negli­gent hand­ling, exces­sive strain, unsui­ta­ble ope­ra­ting mate­ri­als or ina­de­quate con­struc­tion works, unsui­ta­ble­con­struc­tion sites or spe­cial exter­nal influ­en­ces which are not sti­pu­la­ted by the con­tract. If the purcha­ser or a third party impro­perly car­ries out repair work or modi­fi­ca­ti­ons, there shall be no claims­for defects for these mea­su­res and the con­se­quen­ces the­reof. If we manu­fac­ture goods accord­ing to the pur- chaser’s drawing, we shall only be liable for the exe­cu­tion in accordance with the­drawing.

(9)  Claims of the purcha­ser which relate to expen­ses requi­red to cure defects, in par­ti­cu­lar trans­port costs, tolls, working costs and mate­rial costs, are exclu­ded inso­far as the expen­ses incre­a­se­due to the fact that the goods deli­ve­red by us have sub­se­quently been trans­por­ted to a place other than the branch office of the purcha­ser, unless the ship­ment com­plies with their inten­ded use.

(10) After the com­ple­tion, main­ten­ance, cor­rec­tion and/​or repair of parts manu­fac­tu­red with a tool, the purcha­ser under­ta­kes to mea­sure these parts accord­ing to the valid com­po­nent drawing andto release them for serial pro­duc­tion only after its appro­val. If our cus­to­mer dis­re­gards this obli­ga­tion, all claims for any dama­ges resul­ting from serial pro­duc­tion shall be exclu­ded and can­notbe asser­ted on us.

13. General limitations of liability

We exclude our lia­bi­lity for minor negli­gent breaches of duty inso­far as these do not relate to guaran- tees or to dama­ges resul­ting from the injury to life, limb or health or inso­far as claims are asser­ted­un­der the Ger­man Pro­duct Lia­bi­lity Act (Pro­dukt­haf­tungs­ge­setz, Prod­HaftG). Fur­ther­more, the liabil- ity for the bre­ach of essen­tial con­trac­tual obli­ga­ti­ons – that is to say, duties whose ful­fill­ment­make the pro­per exe­cu­tion of the con­tract pos­si­ble in the first place and on whose obser­va­tion the cus- tomer can regu­larly rely – shall remain unaf­fec­ted. The same shall apply to breaches of duty byper- sons whom we use to per­form our obli­ga­ti­ons.

14. Retention/​Offsetting

The exer­cise of a right of reten­tion or the off­set­ting of coun­ter­c­laims of the purcha­ser against claims to which we are enti­t­led is exclu­ded unless they relate to claims that have been reco­gni­zed bydeclar- atory judgment, that have been expressly ack­now­led­ged by us or that are ready for a decision.

15. Factoring

Without having repor­ted this to us and having recei­ved our con­sent to do so first, the purcha­ser shall not be enti­t­led to assign receiva­bles that fall under our exten­ded and expan­ded right to retain title (cf. sec­tion 10 above) to a fac­tor or to com­mis­sion such a com­pany to collect them.

16. Assignment

We shall be enti­t­led to assign our receiva­bles.

17. Industrial property rights

We reserve all copy­rights and other indus­trial pro­perty rights in the designs, drawings and models crea­ted by us. The designs and drawings which have been crea­ted by us, as well as the designs and drawings which have been made avail­able to us by our cus­to­mer, but have been rewor­ked by us, may not be used by our cus­to­mer without our express writ­ten con­sent. In par­ti­cu­lar, the cus­to­mer shall­not be enti­t­led to make avail­able to third par­ties any designs, cal­cu­la­ti­ons, drawings and other busi­ness docu­ments that have been crea­ted by us. We own the copy­right for all images and gra­phics used by us. The same app­lies to the per­for­mance descrip­ti­ons, func­tio­nal spe­ci­fi­ca­ti­ons and other detailed pro­duct descrip­ti­ons we have deve­lo­ped.

18. Place of performance – Applicable law – Jurisdiction

(1)  The place of per­for­mance for all lia­bi­li­ties ari­sing in con­nec­tion with our deli­ve­ries is Bay­reuth.

(2)  These Gene­ral Terms and Con­di­ti­ons, the con­tracts con­clu­ded with us and the ent­ire legal rela- tions­hip with us shall be gover­ned by the law of the Federal Repu­blic of Ger­many, exclu­ding theap- pli­ca­tion of the United Nati­ons Con­ven­tion on Con­tracts for the Inter­na­tio­nal Sale of Goods (CISG) of 11 April 1980.

(3)  The exclu­sive juris­dic­tion for all dis­pu­tes con­cer­ning these Gene­ral Terms and Con­di­ti­ons and their inclu­sion in the respec­tive con­tract as well as for the con­tracts con­clu­ded with us is the court respon­si­ble for our regis­tered office in Bay­reuth.

19. Privacy policy

In accordance with the pro­vi­si­ons of the Ger­man Federal Data Pro­tec­tion Act (Bundesdatenschutzge- setz, BDSG), we point out that we store and pro­cess all cus­to­mer and supplier-​related databy means of elec­tro­nic data pro­ces­sing sys­tems. We shall be enti­t­led to for­ward the data sent to us to the per- sons and com­pa­nies requi­red for the ren­de­ring of ser­vices inso­far as this is necessa­ry­for the deli­very of the goods. Per­so­nal data that has been trans­mit­ted to us will only be stored until the pur­pose for which it was ent­rus­ted to us has been ful­fil­led. Inso­far as reten­tion peri­ods rela­ting tocom­mer­cial or tax law must be obser­ved, the sto­rage time for par­ti­cu­lar data may amount up to ten years. If the con­sent to the sto­rage of the per­so­nal data does no lon­ger exist or the data has beco­m­ei­n­ac­cu­rate, we shall, upon recei­ving a cor­re­spon­ding inst­ruc­tion, arrange for the data to be dele­ted, cor­rec­ted or blo­cked in com­pli­ance with the legal pro­vi­si­ons. Upon request, we will pro­vi­de­in­for­ma­tion free of charge about all per­so­nal data that we have stored about our cus­to­mers. For ques­ti­ons regar­ding the collec­tion, pro­ces­sing or use of the per­so­nal data as well as for infor­ma­tion­about and cor­rec­tion, blo­cking or dele­tion of the data, please send an email to info@formentechnik-bayreuth.de.

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