GENERAL TERMS AND CONDITIONS J.FISCHER & SOHN KG
I. General information
1 All our business transactions with entrepreneurs (hereinafter referred to as "Customer") are subject to the following General Terms and Conditions. Entrepreneurs within the meaning of the Terms and Conditions are natural or legal persons or partnerships with legal capacity who act in the exercise of a commercial or independent professional activity and with whom we enter into a business relationship. Deviating terms and conditions of the customer which we do not expressly recognize in writing are not binding for us, even if we do not expressly object to them. Our terms and conditions shall also apply if we carry out the delivery to the customer without reservation in the knowledge that the customer's terms and conditions conflict with or deviate from our terms and conditions. Our terms and conditions shall also apply to future transactions with the customer.
2. the assignment of the customer's rights under the contract is not permitted.
3 Our offers are subject to change. Collateral agreements, reservations, amendments or additions to contracts must be made in writing to be valid. Special agreements shall only apply to the respective individual case, not to earlier or later transactions.
4 The customer shall be bound by an order placed with us for a period of two weeks after receipt by us. Such an order shall only be accepted by us by written declaration, by notification of our readiness to deliver or by making the delivery; receipt of the declaration of acceptance is not required for it to be effective (§ 151 BGB).
5. our prices are quoted ex Pforzheim plus the applicable rate of value added tax plus freight and packaging. If no fixed prices have been contractually agreed, our list prices valid on the day of delivery shall apply. Agreed prices shall apply four months after conclusion of the contract. If longer delivery periods are agreed, our list prices valid on the day of delivery shall be charged.
6. we reserve all property rights and copyrights to cost estimates, drawings, hand samples and other documents without restriction; these may not be made accessible to third parties. Drawings and other documents belonging to offers must be returned to us immediately upon request if the order is not placed with us. Rights of retention of the customer are excluded.
II Delivery
1. delivery dates or delivery periods, which can be agreed as binding or non-binding, must be recorded in writing in order to be effective. We reserve the right to correct and timely self-delivery.
2. six weeks after exceeding a non-binding delivery date or a non-binding delivery period, the customer may request us in writing to deliver within a reasonable period. We shall be in default with this reminder. If, after we are already in default, the customer sets us a reasonable grace period for performance, the customer shall be entitled to withdraw from the contract if this grace period expires without result; the customer shall only be entitled to claims for damages if the default was due to intent or gross negligence or a breach of material contractual obligations. In the latter two cases, liability for damages shall be limited to the foreseeable, typically occurring damage.
3. if the customer is in default of acceptance or violates other obligations to cooperate, we shall be entitled to demand compensation for the damage incurred by us, including any additional expenses, after expiry of a reasonable grace period. In this case, the risk of accidental loss or accidental deterioration of the object of purchase shall also pass to the customer at the time at which the customer is in default of acceptance.
4. the start of the delivery period stated by us presupposes the clarification of all technical questions. An agreed delivery period shall be extended - without prejudice to our rights arising from the customer's default - by the period by which the customer is in default with his obligations under the contract. Delivery times shall also be extended by the duration of any hindrance caused by force majeure events.
III Liability for material defects
1. for defects in goods delivered by us, we shall initially provide warranty at our discretion by repair or replacement. If the subsequent performance fails, the customer may, at his discretion, demand a reduction of the remuneration (reduction) or withdraw from the contract. However, the customer shall not be entitled to withdraw from the contract in the event of only a minor breach of contract, in particular in the event of only minor defects.
2. the liability for defects does not apply to natural wear and tear, to damage that occurs after the transfer of risk as a result of incorrect or negligent handling, excessive use, unsuitable equipment or operating rooms and damage that occurs due to chemical, electrochemical or electrical influences, unless these are a prerequisite for use according to the contract. The same applies to improper modifications and repair work carried out on the delivered items by the customer or third parties. Insignificant, production-related or natural deviations in color, shape, appearance or consistency are excluded from liability for material defects.
3. if the customer chooses to withdraw from the contract after subsequent performance has failed due to a legal or material defect, he shall not be entitled to any additional claim for damages due to the defect. If the customer chooses compensation for damages after subsequent performance has failed, the goods shall remain with the customer if this is reasonable. The compensation shall then be limited to the difference between the purchase price and the value of the defective item. This shall not apply if the breach of contract was caused by us fraudulently.
4. the customer must notify us in writing of obvious defects within a period of two weeks from receipt of the goods, otherwise the assertion of the warranty claim is excluded. Timely dispatch shall suffice to meet the deadline. The customer shall bear the full burden of proof for all claim requirements, in particular for the defect itself, for the time of discovery of the defect and for the timeliness of the notice of defect.
5. the warranty period shall be one year from delivery of the goods. This shall not apply if the customer has failed to notify us of the defect in good time (above clause 4 of this provision). In the case of used goods, the customer shall bear the burden of proof for the defectiveness of the goods.
6. only the manufacturer's product description shall be deemed authoritative as the quality of the goods. Public statements, promotions or advertising statements by the manufacturer do not constitute an indication of the contractual quality of the goods.
IV. Payment
1. payments for deliveries are due in accordance with the agreement made, without further agreement, no later than 30 days after the invoice date. Payment must be made in such a way that we can dispose of the amount on the due date. The customer shall bear the costs of payment transactions. Bill of exchange and discount charges shall be borne by the customer. They are due and payable immediately.
2. if the customer defaults on payment of a claim arising from the business relationship, we shall be entitled to demand default interest at least at the statutory rate. If we are able to prove higher damages caused by default, we shall be entitled to claim these. In addition, we shall be entitled to declare due any claims not yet due in the event of default of payment by the customer.
3. the customer shall only be entitled to set-off rights if his counterclaims have been legally established, are undisputed or have been recognized by us. In addition, the customer is authorized to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship. The customer shall also have no right of retention due to disputed counterclaims.
4. if the customer defaults on payment or fails to honor a bill of exchange when due, we shall be entitled to take back the goods, enter the customer's premises if necessary and remove the goods. We may also prohibit the resale and removal of the delivered goods. Taking back the goods does not constitute withdrawal from the contract.
5. if we subsequently become aware of circumstances which result in a significant deterioration in our assets and our claim for payment is jeopardized as a result, we shall be entitled to declare our claims due in full and irrespective of the term of any bills of exchange received.
6. in the cases of nos. 4 and 5, we may revoke the direct debit authorization in accordance with section VI no. 5 and demand advance payment for outstanding deliveries.
7. the customer can avert the legal consequences mentioned in Nos. 4 to 6 by providing sufficient security in the amount of our endangered payment claim.
8. the statutory provisions on default of payment shall remain unaffected. In the event that the customer does not meet his payment obligation or acceptance obligation, we shall be entitled to demand compensation for non-fulfillment if the statutory requirements are met. In this case, we shall be entitled to demand 30% of the agreed remuneration as liquidated damages. The customer is at liberty to prove that no damage was incurred or that the damage was lower than the lump sum.
V. Retention of title
1. all delivered goods shall remain our property (reserved goods) until all payment claims, in particular also the respective balance claims to which we are entitled from the business relationship with the customer, have been fulfilled. This shall also apply to future and conditional claims, e.g. from acceptor's bills of exchange, and also if payments are made on specially designated claims. If the purchased item is processed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the purchased item to the other processed items at the time of processing. In all other respects, the same shall apply to the item created by processing as to the purchased item delivered under reservation of title. If the object of sale is inseparably mixed with other objects not belonging to us, we shall acquire co-ownership of the new object in the ratio of the value of the object of sale to the other mixed objects at the time of mixing. If the mixing takes place in such a way that the customer's item is to be regarded as the main item, it is agreed that the customer shall transfer co-ownership to us on a pro rata basis and the customer shall hold the sole or co-ownership thus created in safe custody for us.
2. the customer may only sell the goods subject to retention of title in the ordinary course of business at his normal terms and conditions and as long as he is not in default, provided that the claims from the resale are transferred to us in accordance with Nos. 3 to 5. He is not entitled to dispose of the reserved goods in any other way.
3. the customer's claims arising from the resale of the goods subject to retention of title are hereby assigned to us. They shall serve as security to the same extent as the reserved goods. If the reserved goods are sold by the customer together with other goods not sold by us, the claim from the resale shall be assigned to us in proportion to the invoice value of the other goods sold.
4. the customer shall be entitled to collect claims from the resale unless we revoke the collection authorization in the cases specified in Section V No. 6. At our request, he shall be obliged to inform his customers immediately of the assignment to us - unless we do so ourselves - and to provide us with the information and documents required for collection. Under no circumstances shall the customer be entitled to further assignment of the claims. This shall also apply to factoring transactions which the customer is not permitted to carry out on the basis of our authorization to collect.
5. the customer must inform us immediately of any seizure of the reserved goods or other impairments by third parties.
6. if the value of the existing securities exceeds the secured claims by more than 20% in total, we shall be obliged to release securities of our choice at the customer's request.
VI Shipping, transfer of risk, packaging, partial delivery
1. we determine the shipping route and means as well as the forwarding agent and carrier.
2. goods notified as ready for dispatch in accordance with the contract must be called off immediately, otherwise we shall be entitled, after issuing a reminder, to dispatch them at the customer's expense and risk at our discretion or to store them at our discretion and invoice them immediately.
3. if transportation by the intended route or to the intended place within the intended time becomes impossible through no fault of our own, we shall be entitled to deliver by another route or to another place; the additional costs incurred shall be borne by the customer. The customer shall be given the opportunity to comment beforehand.
4. the risk, including the risk of confiscation of the goods, shall pass to the customer for all transactions, including carriage paid and free deliveries, when the goods are handed over to a forwarding agent or carrier, but at the latest when they leave the warehouse or the supplying plant. We shall only provide insurance at the instruction and expense of the customer.
5. we are entitled to make partial deliveries to a reasonable extent with the consequence that we can demand partial payment for the delivered goods.
VII Joint and several liability
We shall not be liable in the event of a slightly negligent breach of insignificant contractual obligations. In the event of slightly negligent breaches of duty, our liability shall otherwise be limited to the foreseeable, contract-typical, direct average damage according to the type of goods. This also applies to slightly negligent breaches of duty by our representatives or vicarious agents. The above limitations of liability do not apply to claims of the customer arising from product liability. Furthermore, the limitations of liability shall not apply in the event of physical injury or damage to health attributable to us.
VIII. Place of jurisdiction - Place of performance
1. if the customer is a registered trader, Pforzheim shall be the place of jurisdiction; in this case, however, we shall also be entitled to sue the customer at the court of his place of residence. Unless otherwise stated in the order confirmation, Pforzheim shall be the place of performance. If the customer moves his domicile or usual place of residence outside the territory of the Federal Republic of Germany after conclusion of the contract, Pforzheim shall be the place of jurisdiction. This shall also apply if the customer's domicile or habitual residence is unknown at the time the action is brought.
2. the law of the Federal Republic of Germany shall apply. The application of international sales law (UN sales law) is excluded.
3. should individual provisions of the contract with the customer, including these general terms and conditions, be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions. The wholly or partially invalid provision shall be replaced by a provision whose economic success comes as close as possible to that of the invalid provision. The same applies to any loopholes in the contract or the terms and conditions
