73274 Notzingen -Germany-
Phone: +49 (0)7021 92807-32
Fax: +49 (0)7021 95669-26
Terms of Sale and Delivery of the FLM GmbH
1. General Information and Scope
1.1 The following terms and conditions shall apply exclusively for all present and future offers and contracts, which we may make or conclude. Our terms of sale shall also take precedence over any terms and conditions of the buyer even if we have knowledge of conditions of the seller, which contradict or deviate from our terms of sale, and we deliver to the buyer without any reservations.
1.2 Our terms of sale and delivery shall only apply with respect to entrepreneurs in the sense of paragraph 310 I of the German Civil Code.
2. Offers and Offer Documents
2.1 Our offers shall be subject to changes if nothing to the contrary is stated in the acceptance of the order. A contract shall be effected upon the issuance of our written acceptance of an order or through delivery. Our acceptance of the order shall be solely definitive for the contents of the contract and in particular for the scope of performance for the contract and any changes or amendments to the contract must be confirmed in writing by us.
2.2 We reserve the right to make changes with respect to the figures, description, drawings, weights and dimensions in our brochures, price lists, catalogues and offers if the delivery item is not significantly changed by this or the quality of the item is improved and the changes are deemed reasonable for the buyer.
2.3 We reserve the right to the ownership rights and the copyrights for all figures, descriptions and drawings etc.
3. Prices and Terms of Payment
3.1 Our prices are ex works excluding packaging, shipment and insurance. The valid value-added tax is to be added to the prices. Additional costs for priority and express shipment shall be borne by the buyer.
3.2 The deduction of a discount must be agreed on in a separate agreement.
3.3 If nothing to the contrary is contained in the acceptance of the order, then the net purchase price without any deductions shall be due within 30 days of the invoice date. The legal provisions concerning default in payment shall apply.
3.4 The buyer may only offset counterclaims against our debt claims if such counterclaims are undisputed, indefeasible or acknowledged buy us.
4. Period of Delivery
4.1 The beginning of the indicated period of delivery presumes that the clarification of all technical questions and the timely and proper fulfillment of the buyer's obligations have been accomplished. A delivery deadline shall be considered as fulfilled, if the delivery item has been given to shipping or the item is ready for shipping and the buyer has been notified of this.
4.2 If we cannot meet the delivery date due to reasons, for which we are not responsible, such as breakdowns, stoppages, strikes, lockouts, energy supply difficulties or delays in the delivery of essential raw and starting materials etc., then we shall promptly notify the buyer of this. If, in such a case, it cannot be determined that we will be able to perform within a reasonable time limit, but no later than four months, we and the buyer may withdraw from the contract. The same shall apply if the reasons for delay still exist after the expiration of four months after our notification. If these reasons for delay are known to us at the conclusion of the contract, then we are not entitled to withdraw from the contract.
4.3 If the buyer is in default in acceptance of goods or culpably violates other duties to cooperate, then we shall be entitled to demand compensation for any damages incurred including any additional expenses. We also reserve the right to assert further claims.
4.4 If the conditions described in paragraph 4.3 exist, then the risk of an accidental loss or of an accidental deterioration of the goods sold shall devolve to the buyer at that time, at which the buyer is in default in acceptance or in default of the debtor.
5. Passing of Risk and Packaging
5.1 If nothing to the contrary is contained in the acceptance of the order, the delivery is "ex works." The risk of an accidental loss or of an accidental deterioration of the object of performance shall devolve to the buyer as soon as the goods are sent to shipping or notification of the readiness for shipping has been made. This shall apply, regardless if the shipping is made from the place of performance and regardless of who bears the shipping costs.
5.2 Partial deliveries are allowed.
5.3 The buyer shall be responsible for disposing of all packaging at his own cost. We shall not be obligated to accept the return of any packaging.
5.4 If the buyer desires, we will cover the delivery with transport insurance and any costs incurred due to this shall be borne by the buyer.
6. Retention of Title
6.1 Goods, which we have supplied, shall remain our property until the complete fulfillment of all of our claims from the entire business transaction with the buyer.
6.2 The buyer shall insure those goods, which are subject to the retention of title, at his own cost against fire, water damage, illegal entry and theft. Upon request, the insurance policy shall be sent to us for review. The buyer shall assign the claims against the insurance company to us in advance.
6.3 The buyer shall promptly notify us of any attachment or seizure of the property, which is subject to the right of retention of title, by a third party. The buyer shall bear all costs, which are incurred for the revocation of any seizure or attachment and replacement of the goods, which we delivered.
6.4 The buyer shall be entitled to sell the conditional goods, meaning those subject to right of retention of title, in the ordinary course of business, so long as he is not in default. Pledging or transfer of ownership by way of security is not authorized. Any debt claims resulting from the resale or a special legal reason, which might include insurance or unauthorized actions, with respect to the conditional property shall be assigned as of this time to us by the buyer to the full extent for security purposes. Subject to revocation, we authorize the buyer to collect the debt claims, which were assigned to us, for our account in his own name. Upon our request, the buyer shall disclose the assigned debt claim and provide us with the necessary information and documents for the collection of the debt claim.
6.5 If the buyer violates the contract and in particular if he is in default of payment, then we shall be entitled, after setting a reasonable time limit, to take back the conditional goods at the cost of the buyer. The taking back of the goods by us is at the same time the withdrawal from the contract. We shall be entitled to realize the goods after taking them back. The proceeds from the realization shall be applied to the debt of the buyer minus any reasonable realization costs.
6.6 If the conditional goods are connected with another object, then the right to retention of title shall apply to this new object. Thus, we shall acquire a coowner's interest in the relation of the value of the conditional goods (invoice final amount including value-added tax) to the value of the new object. If one of the connected objects is to be seen as a main issue, then the buyer shall assign us the coownership in the relation of the value of the goods (invoice final amount including value-added tax) we delivered to the value of the new object. The buyer shall provide safekeeping for the new object with respect to our coowner's interest and this shall be at no charge. If the conditional goods are resold as a part of the new object, then the advance assignment according to paragraph 6.4 shall only apply in the amount of the invoice final amount including the value-added tax for the conditional goods.
6.7 If the value of the securities, to which we are entitled according to the above provisions, exceeds the amount of our debt claims by more than 10 percent, then we shall be obligated to release this excess value. We shall be free in the selection of the securities to be released.
7. Liability for Defects
7.1 The buyer's rights concerning defects presume that the buyer has properly fulfilled his duty to examine and his duty to make a complaint with respect to a defect immediately on receipt of the goods according to paragraph 377 of the German Commercial Code.
7.2 If a defect in the goods sold exists, then we shall be entitled to choose subsequent performance in the form of the remedy of the defect or to deliver a new defect-free item. In the case of the remedy of the defect, we shall be obligated to bear all of the cost required to remedy the defect and in particular the costs for transport, travel, work and materials to the degree that these costs are not increased due to the fact that the goods sold were taken to a location other than the place of performance. If as part of the subsequent improvement work, we replace material belonging to the buyer, which we delivered, then we shall acquire ownership of the parts replaced. A defect shall not exist, if the complaint is due to improper assembly by the buyer – if defective assembly instructions are not the cause – to improper treatment, use contrary to regulation or normal wear and tear. If the buyer changes or repairs the goods, which we delivered, or has these goods changed or repaired by a third party, then our liability shall expire unless the buyer can prove that the change or repair was not the cause of the defect or a contributing factor to the defect.
7.3 If the subsequent performance is not successful, then the buyer shall be entitled to demand a withdrawal from the contract or a reduction of the price.
7.4 We shall be liable according to legal provisions, if the buyer asserts damage claims, which are based on wrongful intention or gross negligence including wrongful intention or gross negligence of our representatives or vicarious agents. If we are not accused of any intentional violations of the contract, then the liability for damages shall be limited to the foreseeable and typically occurring damage.
7.5 We shall be liable according to the legal provisions, if we culpably commit a material breach of the contract. In this case, the liability for damages shall be limited to the foreseeable and typically occurring damage.
7.6 If the buyer is entitled to a claim for damages instead of performance, then our liability including with respect to paragraph 7.3 shall be limited to compensation for foreseeable and typically occurring damage.
7.7 The liability due to culpable fatal injuries, bodily injury or damage to health shall not be affected. This shall also apply for the compulsory liability according to the product liability law.
7.8 If nothing contrary to the above is agreed upon, then liability is excluded for those cases not covered by the above.
7.9 The statutory period of limitations for claims due to defects shall be 12 months after the passing of the risk.
7.10 The statutory period of limitation in the case of the right according to paragraphs 478 and 479 of the German Civil Code of recourse for a delivery shall not be affected. This period is five years after the delivery of the defective item.
8. Total Liability
8.1 Any further liability for compensation than is described in paragraph 7 is excluded and this shall apply without any regard to the legal nature of the asserted claim. This shall apply in particular to claims for damages due to blame upon conclusion of the contract, due to other misfeasances or due to claims in tort for compensation for property damage according to paragraph 823 of the German Civil Code.
8.2 If our liability for damages is excluded or limited, then this shall also apply to the personal liability of our employees, representatives and vicarious agents for damages.
9. Place of Jurisdiction and Place of Performance
9.1 The place of jurisdiction is Emmendingen, Germany. However, we shall be entitled to take legal action against the buyer at the court for his legal residence.
9.2 The laws of the Federal Republic of Germany shall apply. The UN Sales Convention shall not apply.
9.3 If nothing to the contrary is contained in the acceptance of the order, then the place of performance shall be the location of our principal place of business.